As filed with the Securities and Exchange Commission on October 7, 2016
Registration No. 333-214024
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, DC 20549
Amendment
No. 1
to
Form S-4
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Charter
Communications Operating, LLC
and
Charter Communications Operating Capital Corp.
(Exact name of registrants as specified in their charters)
CCO Holdings, LLC*
(Exact name of registrant guarantor as specified in its charter)
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Delaware
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4841
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43-1843260
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Delaware
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4841
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20-1044453
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Delaware
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4841
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86-1067239
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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400 Atlantic Street
Stamford, Connecticut 06901
(203) 905-7801
(Address, including zip code, and telephone number, including area code, of registrants’ and registrant guarantor’s principal
executive offices)
Richard R. Dykhouse
Executive Vice President, General Counsel and Corporate Secretary
400 Atlantic Street
Stamford, Connecticut 06901
(203) 905-7801
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Christian O. Nagler
Kirkland & Ellis LLP
601 Lexington Avenue
New
York, New York 10022-4611
(212) 446-4800
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*
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The companies listed below in the Table of Additional Registrant Guarantors are also included in this Registration Statement on Form S-4 as additional Registrant Guarantors.
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Approximate date of commencement of proposed sale to the public:
As soon as practicable
after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in connection
with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities
Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be
Registered
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Proposed
Maximum
Offering Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
(1), (2)(3)
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3.579% Senior Secured Notes due 2020
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$2,000,000,000
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100%
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$2,000,000,000
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$231,800
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4.464% Senior Secured Notes due 2022
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$3,000,000,000
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100%
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$3,000,000,000
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$347,700
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4.908% Senior Secured Notes due 2025
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$4,500,000,000
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100%
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$4,500,000,000
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$521,550
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6.384% Senior Secured Notes due 2035
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$2,000,000,000
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100%
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$2,000,000,000
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$231,800
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6.484% Senior Secured Notes due 2045
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$3,500,000,000
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100%
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$3,500,000,000
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$405,650
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6.834% Senior Secured Notes due 2055
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$500,000,000
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100%
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$500,000,000
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$57,950
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Guarantees of 3.579% Senior Secured Notes due 2020
(4)
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n/a
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n/a
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n/a
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—
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Guarantees of 4.464% Senior Secured Notes due 2022
(4)
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n/a
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n/a
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n/a
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—
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Guarantees of 4.908% Senior Secured Notes due 2025
(4)
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n/a
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n/a
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n/a
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—
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Guarantees of 6.384% Senior Secured Notes due 2035
(4)
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n/a
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n/a
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n/a
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—
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Guarantees of 6.484% Senior Secured Notes due 2045
(4)
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n/a
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n/a
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n/a
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—
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Guarantees of 6.834% Senior Secured Notes due 2055
(4)
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n/a
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n/a
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n/a
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—
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Total
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$15,500,000,000
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—
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—
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$1,796,450
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(1)
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The amount of the registration fee paid herewith was calculated, pursuant to Rule 457(f) under the Securities Act of 1933, as amended.
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(2)
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Pursuant to Rule 457(n), no registration fee is payable with respect to the guarantees.
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(3)
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These fees were previously paid with the original filing of this Registration Statement.
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(4)
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Guaranteed by CCO Holdings, LLC and the additional Registrant Guarantors listed in the table below.
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The
Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
TABLE OF ADDITIONAL REGISTRANT GUARANTORS
The following subsidiaries of Charter Communications Operating, LLC will guarantee the notes issued hereunder and are additional Registrant
Guarantors under this registration statement. The address, including zip code, and telephone number, including area code, for each of the additional Registrant Guarantors is c/o Charter Communications Operating, LLC, 400 Atlantic Street, Stamford,
Connecticut 06901, (203) 905-7801. The primary standard industrial classification number for each of these additional Registrant Guarantors is 4841.
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Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
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Jurisdiction of Incorporation or
Organization
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I.R.S. Employer
Identification
Number
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AdCast North Carolina Cable Advertising, LLC
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Delaware
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06-1611033
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Alabanza LLC
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Delaware
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26-0665775
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America’s Job Exchange LLC
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Delaware
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14-1850188
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American Cable Entertainment Company, LLC
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Delaware
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06-1504934
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Athens Cablevision, LLC
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Delaware
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38-2725702
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BHN Home Security Services, LLC
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Delaware
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26-2831653
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BHN Spectrum Investments, LLC
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Delaware
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20-8141882
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Bresnan Broadband Holdings, LLC
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Delaware
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13-4119839
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Bresnan Broadband of Colorado, LLC
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Colorado
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35-2403834
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Bresnan Broadband of Montana, LLC
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Montana
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32-0334681
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Bresnan Broadband of Utah, LLC
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Utah
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30-0667318
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Bresnan Broadband of Wyoming, LLC
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Wyoming
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61-1642737
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Bresnan Communications, LLC
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Delaware
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90-0664229
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Bresnan Digital Services, LLC
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Delaware
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38-3833973
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Bresnan Microwave of Montana, LLC
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Delaware
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36-4691716
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Bright House Networks Information Services (Alabama), LLC
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Delaware
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20-1544201
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Bright House Networks Information Services (California), LLC
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Delaware
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20-1544390
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Bright House Networks Information Services (Florida), LLC
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Delaware
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59-3758339
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Bright House Networks Information Services (Indiana), LLC
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Delaware
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20-1544486
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Bright House Networks Information Services (Michigan), LLC
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Delaware
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20-1544302
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Bright House Networks, LLC
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Delaware
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02-0636401
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Cable Equities Colorado, LLC
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Delaware
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84-1000716
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Cable Equities of Colorado Management LLC
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Delaware
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84-1004751
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CC 10, LLC
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Delaware
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11-3546155
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CC Fiberlink, LLC
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Delaware
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43-1928509
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CC Michigan, LLC
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Delaware
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13-4029981
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CC Systems, LLC
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Delaware
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43-1925731
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CC V Holdings, LLC
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Delaware
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13-4029965
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CC VI Fiberlink, LLC
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Delaware
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20-0310684
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Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
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Jurisdiction of Incorporation or
Organization
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I.R.S. Employer
Identification
Number
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CC VI Operating Company, LLC
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Delaware
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43-1864760
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CC VII Fiberlink, LLC
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Delaware
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20-0310704
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CC VIII Fiberlink, LLC
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Delaware
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20-0310844
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CC VIII Holdings, LLC
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Delaware
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38-2558446
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CC VIII Operating, LLC
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Delaware
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38-2558446
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CC VIII, LLC
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Delaware
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13-4081498
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CCO Fiberlink, LLC
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Delaware
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20-0310854
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CCO Holdco Transfers VII, LLC
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Delaware
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47-0970548
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CCO LP, LLC
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Delaware
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47-0981326
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CCO NR Holdings, LLC
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Delaware
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86-1067241
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CCO Purchasing, LLC
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Delaware
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43-1864759
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CCO SoCal I, LLC
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Delaware
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80-0732570
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CCO SoCal II, LLC
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Delaware
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90-0732400
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CCO SoCal Vehicles, LLC
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Delaware
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45-2868853
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CCO Transfers, LLC
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Delaware
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47-0970631
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Charter Advanced Services (AL), LLC
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Delaware
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32-0400319
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Charter Advanced Services (CA), LLC
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Delaware
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80-0890397
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Charter Advanced Services (CO), LLC
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Delaware
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32-0415082
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Charter Advanced Services (CT), LLC
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Delaware
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80-0890773
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Charter Advanced Services (GA), LLC
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Delaware
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38-3897585
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Charter Advanced Services (IL), LLC
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Delaware
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46-1988793
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Charter Advanced Services (IN), LLC
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Delaware
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47-1023144
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Charter Advanced Services (KY), LLC
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Delaware
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47-1034561
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Charter Advanced Services (LA), LLC
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Delaware
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90-0932382
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Charter Advanced Services (MA), LLC
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Delaware
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30-0762559
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Charter Advanced Services (MD), LLC
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Delaware
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81-1622833
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Charter Advanced Services (MI), LLC
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Delaware
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38-3897532
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Charter Advanced Services (MN), LLC
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Delaware
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32-0400643
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Charter Advanced Services (MO), LLC
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Delaware
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32-0400433
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Charter Advanced Services (MS), LLC
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Delaware
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61-1722677
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Charter Advanced Services (MT), LLC
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Delaware
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32-0414720
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Charter Advanced Services (NC), LLC
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Delaware
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80-0891281
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Charter Advanced Services (NE), LLC
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Delaware
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90-0932594
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Charter Advanced Services (NH), LLC
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Delaware
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30-0763042
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Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
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Jurisdiction of Incorporation or
Organization
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I.R.S. Employer
Identification
Number
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Charter Advanced Services (NV), LLC
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Delaware
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30-0762819
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Charter Advanced Services (NY), LLC
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Delaware
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36-4752850
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Charter Advanced Services (OH), LLC
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Delaware
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47-1022897
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Charter Advanced Services (OR), LLC
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Delaware
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61-1704031
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Charter Advanced Services (PA), LLC
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Delaware
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47-1022857
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Charter Advanced Services (SC), LLC
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Delaware
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46-1943109
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Charter Advanced Services (TN), LLC
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Delaware
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80-0890880
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Charter Advanced Services (TX), LLC
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Delaware
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46-1943601
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Charter Advanced Services (UT), LLC
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Delaware
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46-3166882
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Charter Advanced Services (VA), LLC
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Delaware
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90-0933316
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Charter Advanced Services (VT), LLC
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Delaware
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90-0932933
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Charter Advanced Services (WA), LLC
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Delaware
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80-0891340
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Charter Advanced Services (WI), LLC
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Delaware
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46-1943751
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Charter Advanced Services (WV), LLC
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Delaware
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47-1034638
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Charter Advanced Services (WY), LLC
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Delaware
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38-3911344
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Charter Advanced Services VIII (MI), LLC
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Delaware
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35-2466192
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Charter Advanced Services VIII (MN), LLC
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Delaware
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90-0932548
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Charter Advanced Services VIII (WI), LLC
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Delaware
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46-1943928
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Charter Advertising of Saint Louis, LLC
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Delaware
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43-1475682
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Charter Cable Operating Company, LLC
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Delaware
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75-2775557
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Charter Cable Partners, LLC
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Delaware
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75-2775562
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Charter Communications Entertainment I, LLC
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Delaware
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43-1720016
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Charter Communications Entertainment II, LLC
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Delaware
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43-1720017
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Charter Communications Entertainment, LLC
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Delaware
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43-1723475
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Charter Communications of California, LLC
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Delaware
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47-0989093
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Charter Communications Properties LLC
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Delaware
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43-1792671
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Charter Communications Ventures, LLC
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Delaware
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43-1901566
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Charter Communications VI, L.L.C.
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Delaware
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43-1854208
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Charter Communications VII, LLC
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Delaware
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43-1867193
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Charter Communications, LLC
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Delaware
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43-1659860
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Charter Distribution, LLC
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Delaware
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74-3089287
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Charter Fiberlink – Alabama, LLC
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Delaware
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20-0193389
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Charter Fiberlink – Georgia, LLC
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Delaware
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20-0193674
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Charter Fiberlink - Illinois, LLC
|
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Delaware
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43-1943035
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|
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|
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Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
|
|
Jurisdiction of Incorporation or
Organization
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I.R.S. Employer
Identification
Number
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Charter Fiberlink – Maryland II, LLC
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Delaware
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81-2255084
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Charter Fiberlink – Michigan, LLC
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Delaware
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43-1875389
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Charter Fiberlink – Missouri, LLC
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Delaware
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43-1928511
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Charter Fiberlink – Nebraska, LLC
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Delaware
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81-0547765
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Charter Fiberlink – Pennsylvania, LLC
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Delaware
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20-0258623
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Charter Fiberlink – Tennessee, LLC
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Delaware
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20-0193707
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Charter Fiberlink AR-CCVII, LLC
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Delaware
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20-0709081
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Charter Fiberlink CA-CCO, LLC
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Delaware
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43-1943040
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Charter Fiberlink CC VIII, LLC
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Delaware
|
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43-1793439
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Charter Fiberlink CCO, LLC
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|
Delaware
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43-1876029
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Charter Fiberlink CT-CCO, LLC
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|
Delaware
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|
20-0339366
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Charter Fiberlink LA-CCO, LLC
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|
Delaware
|
|
20-0709283
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Charter Fiberlink MA-CCO, LLC
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|
Delaware
|
|
20-0258357
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Charter Fiberlink MS-CCVI, LLC
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|
Delaware
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|
20-0709405
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|
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|
Charter Fiberlink NC-CCO, LLC
|
|
Delaware
|
|
20-0258604
|
|
|
|
|
|
Charter Fiberlink NH-CCO, LLC
|
|
Delaware
|
|
20-0709514
|
|
|
|
|
|
Charter Fiberlink NV-CCVII, LLC
|
|
Delaware
|
|
20-0474139
|
|
|
|
|
|
Charter Fiberlink NY-CCO, LLC
|
|
Delaware
|
|
20-0426827
|
|
|
|
|
|
Charter Fiberlink OH-CCO, LLC
|
|
Delaware
|
|
20-0709711
|
|
|
|
|
|
Charter Fiberlink OR-CCVII, LLC
|
|
Delaware
|
|
20-0474232
|
|
|
|
|
|
Charter Fiberlink SC-CCO, LLC
|
|
Delaware
|
|
43-1943037
|
|
|
|
|
|
Charter Fiberlink TX-CCO, LLC
|
|
Delaware
|
|
43-1943038
|
|
|
|
|
|
Charter Fiberlink VA-CCO, LLC
|
|
Delaware
|
|
20-0709822
|
|
|
|
|
|
Charter Fiberlink VT-CCO, LLC
|
|
Delaware
|
|
20-0258644
|
|
|
|
|
|
Charter Fiberlink WA-CCVII, LLC
|
|
Delaware
|
|
20-0474261
|
|
|
|
|
|
Charter Helicon, LLC
|
|
Delaware
|
|
43-1855018
|
|
|
|
|
|
Charter Home Security, LLC
|
|
Delaware
|
|
47-1496418
|
|
|
|
|
|
Charter Leasing Holding Company, LLC
|
|
Delaware
|
|
47-4669203
|
|
|
|
|
|
Charter Leasing of Wisconsin, LLC
|
|
Delaware
|
|
47-4657690
|
|
|
|
|
|
Charter RMG, LLC
|
|
Delaware
|
|
43-1854203
|
|
|
|
|
|
Charter Stores FCN, LLC
|
|
Delaware
|
|
03-0475570
|
|
|
|
|
|
Charter Video Electronics, LLC
|
|
Delaware
|
|
39-1029927
|
|
|
|
|
|
DukeNet Communications Holdings, LLC
|
|
Delaware
|
|
27-2958210
|
|
|
|
|
|
DukeNet Communications, LLC
|
|
Delaware
|
|
27-2985707
|
|
|
|
|
|
|
|
Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
|
|
Jurisdiction of Incorporation or
Organization
|
|
I.R.S. Employer
Identification
Number
|
|
|
|
|
|
Falcon Cable Communications, LLC
|
|
Delaware
|
|
52-2095705
|
|
|
|
|
|
Falcon Cable Media, a California Limited Partnership
|
|
California
|
|
95-4455189
|
|
|
|
|
|
Falcon Cable Systems Company II, L.P.
|
|
California
|
|
95-4582801
|
|
|
|
|
|
Falcon Cablevision, a California Limited Partnership
|
|
California
|
|
95-4455183
|
|
|
|
|
|
Falcon Community Cable, L.P.
|
|
Delaware
|
|
95-4455187
|
|
|
|
|
|
Falcon Community Ventures I Limited Partnership
|
|
California
|
|
95-4455185
|
|
|
|
|
|
Falcon First Cable of the Southeast, LLC
|
|
Delaware
|
|
95-4258089
|
|
|
|
|
|
Falcon First, LLC
|
|
Delaware
|
|
95-4258093
|
|
|
|
|
|
Falcon Telecable, a California Limited Partnership
|
|
California
|
|
95-4455179
|
|
|
|
|
|
Falcon Video Communications, L.P.
|
|
Delaware
|
|
95-4375518
|
|
|
|
|
|
Helicon Partners I, L.P.
|
|
Delaware
|
|
22-3337392
|
|
|
|
|
|
Hometown T.V., LLC
|
|
Delaware
|
|
14-1749551
|
|
|
|
|
|
HPI Acquisition Co. LLC
|
|
Delaware
|
|
22-3441341
|
|
|
|
|
|
ICI Holdings, LLC
|
|
Delaware
|
|
13-4074206
|
|
|
|
|
|
Insight Blocker LLC
|
|
Delaware
|
|
81-2564976
|
|
|
|
|
|
Insight Capital LLC
|
|
Delaware
|
|
13-4079679
|
|
|
|
|
|
Insight Communications Company, L.P.
|
|
Delaware
|
|
13-3290944
|
|
|
|
|
|
Insight Communications Midwest, LLC
|
|
Delaware
|
|
13-4013377
|
|
|
|
|
|
Insight Communications of Central Ohio, LLC
|
|
Delaware
|
|
13-4017803
|
|
|
|
|
|
Insight Communications of Kentucky, L.P.
|
|
Delaware
|
|
94-3291448
|
|
|
|
|
|
Insight Interactive, LLC
|
|
Delaware
|
|
52-2200721
|
|
|
|
|
|
Insight Kentucky Capital, LLC
|
|
Delaware
|
|
13-4079233
|
|
|
|
|
|
Insight Kentucky Partners I, L.P.
|
|
Delaware
|
|
94-3291839
|
|
|
|
|
|
Insight Kentucky Partners II, L.P.
|
|
Delaware
|
|
94-3291449
|
|
|
|
|
|
Insight Midwest Holdings, LLC
|
|
Delaware
|
|
13-4147884
|
|
|
|
|
|
Insight Midwest, L.P.
|
|
Delaware
|
|
13-4079232
|
|
|
|
|
|
Insight Phone of Indiana, LLC
|
|
Delaware
|
|
30-0022765
|
|
|
|
|
|
Insight Phone of Kentucky, LLC
|
|
Delaware
|
|
30-0022773
|
|
|
|
|
|
Insight Phone of Ohio, LLC
|
|
Delaware
|
|
20-1397428
|
|
|
|
|
|
Interactive Cable Services, LLC
|
|
Delaware
|
|
01-0629142
|
|
|
|
|
|
Interlink Communications Partners, LLC
|
|
Delaware
|
|
84-1437911
|
|
|
|
|
|
Intrepid Acquisition LLC
|
|
Delaware
|
|
76-0732702
|
|
|
|
|
|
Long Beach, LLC
|
|
Delaware
|
|
43-1831549
|
|
|
|
|
|
Marcus Cable Associates, L.L.C.
|
|
Delaware
|
|
75-2775560
|
|
|
|
|
|
|
|
Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
|
|
Jurisdiction of Incorporation or
Organization
|
|
I.R.S. Employer
Identification
Number
|
|
|
|
|
|
Marcus Cable of Alabama, L.L.C.
|
|
Delaware
|
|
43-1548562
|
|
|
|
|
|
Marcus Cable, LLC
|
|
Delaware
|
|
75-2569103
|
|
|
|
|
|
Midwest Cable Communications, LLC
|
|
Delaware
|
|
41-0963108
|
|
|
|
|
|
NaviSite LLC
|
|
Delaware
|
|
52-2137343
|
|
|
|
|
|
New Wisconsin Procurement LLC
|
|
Delaware
|
|
81-2593009
|
|
|
|
|
|
Oceanic Time Warner Cable LLC
|
|
Delaware
|
|
45-4593273
|
|
|
|
|
|
Parity Assets LLC
|
|
Delaware
|
|
45-4854395
|
|
|
|
|
|
Peachtree Cable TV, L.P.
|
|
Delaware
|
|
None
|
|
|
|
|
|
Peachtree Cable TV, LLC
|
|
Delaware
|
|
43-1943639
|
|
|
|
|
|
Phone Transfers (AL), LLC
|
|
Delaware
|
|
47-0982109
|
|
|
|
|
|
Phone Transfers (CA), LLC
|
|
Delaware
|
|
47-0988500
|
|
|
|
|
|
Phone Transfers (GA), LLC
|
|
Delaware
|
|
47-0984230
|
|
|
|
|
|
Phone Transfers (NC), LLC
|
|
Delaware
|
|
47-0988629
|
|
|
|
|
|
Phone Transfers (TN), LLC
|
|
Delaware
|
|
47-0994648
|
|
|
|
|
|
Phone Transfers (VA), LLC
|
|
Delaware
|
|
47-0999732
|
|
|
|
|
|
Renaissance Media LLC
|
|
Delaware
|
|
14-1800030
|
|
|
|
|
|
Rifkin Acquisition Partners, LLC
|
|
Delaware
|
|
84-1317714
|
|
|
|
|
|
Robin Media Group, LLC
|
|
Delaware
|
|
54-1342676
|
|
|
|
|
|
Scottsboro TV Cable, LLC
|
|
Delaware
|
|
38-2691210
|
|
|
|
|
|
The Helicon Group, L.P.
|
|
Delaware
|
|
22-3248703
|
|
|
|
|
|
Time Warner Cable Business LLC
|
|
Delaware
|
|
35-2466312
|
|
|
|
|
|
Time Warner Cable Enterprises LLC
|
|
Delaware
|
|
45-4854395
|
|
|
|
|
|
Time Warner Cable Information Services (Alabama), LLC
|
|
Delaware
|
|
20-0639409
|
|
|
|
|
|
Time Warner Cable Information Services (Arizona), LLC
|
|
Delaware
|
|
20-4370232
|
|
|
|
|
|
Time Warner Cable Information Services (California), LLC
|
|
Delaware
|
|
20-0162970
|
|
|
|
|
|
Time Warner Cable Information Services (Colorado), LLC
|
|
Delaware
|
|
26-2375439
|
|
|
|
|
|
Time Warner Cable Information Services (Hawaii), LLC
|
|
Delaware
|
|
20-0162993
|
|
|
|
|
|
Time Warner Cable Information Services (Idaho), LLC
|
|
Delaware
|
|
20-8254896
|
|
|
|
|
|
Time Warner Cable Information Services (Illinois), LLC
|
|
Delaware
|
|
26-2375576
|
|
|
|
|
|
Time Warner Cable Information Services (Indiana), LLC
|
|
Delaware
|
|
20-1618562
|
|
|
|
|
|
Time Warner Cable Information Services (Kansas), LLC
|
|
Delaware
|
|
20-0163009
|
|
|
|
|
|
Time Warner Cable Information Services (Kentucky), LLC
|
|
Delaware
|
|
20-4370430
|
|
|
|
|
|
Time Warner Cable Information Services (Maine), LLC
|
|
Delaware
|
|
48-1296576
|
|
|
|
|
|
Time Warner Cable Information Services (Massachusetts), LLC
|
|
Delaware
|
|
20-0639517
|
|
|
|
|
|
|
|
Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
|
|
Jurisdiction of Incorporation or
Organization
|
|
I.R.S. Employer
Identification
Number
|
|
|
|
|
|
Time Warner Cable Information Services (Michigan), LLC
|
|
Delaware
|
|
26-2376102
|
|
|
|
|
|
Time Warner Cable Information Services (Missouri), LLC
|
|
Delaware
|
|
20-0163031
|
|
|
|
|
|
Time Warner Cable Information Services (Nebraska), LLC
|
|
Delaware
|
|
20-0597251
|
|
|
|
|
|
Time Warner Cable Information Services (New Hampshire), LLC
|
|
Delaware
|
|
20-0834759
|
|
|
|
|
|
Time Warner Cable Information Services (New Jersey), LLC
|
|
Delaware
|
|
20-0605091
|
|
|
|
|
|
Time Warner Cable Information Services (New Mexico), LLC
|
|
Delaware
|
|
20-8244978
|
|
|
|
|
|
Time Warner Cable Information Services (New York), LLC
|
|
Delaware
|
|
06-1530234
|
|
|
|
|
|
Time Warner Cable Information Services (North Carolina), LLC
|
|
Delaware
|
|
05-0563203
|
|
|
|
|
|
Time Warner Cable Information Services (Ohio), LLC
|
|
Delaware
|
|
20-0163449
|
|
|
|
|
|
Time Warner Cable Information Services (Pennsylvania), LLC
|
|
Delaware
|
|
20-0639607
|
|
|
|
|
|
Time Warner Cable Information Services (South Carolina), LLC
|
|
Delaware
|
|
20-0163480
|
|
|
|
|
|
Time Warner Cable Information Services (Tennessee), LLC
|
|
Delaware
|
|
20-0639795
|
|
|
|
|
|
Time Warner Cable Information Services (Texas), LLC
|
|
Delaware
|
|
20-0095157
|
|
|
|
|
|
Time Warner Cable Information Services (Virginia), LLC
|
|
Delaware
|
|
20-4370738
|
|
|
|
|
|
Time Warner Cable Information Services (Washington), LLC
|
|
Delaware
|
|
20-5690377
|
|
|
|
|
|
Time Warner Cable Information Services (West Virginia), LLC
|
|
Delaware
|
|
20-1620308
|
|
|
|
|
|
Time Warner Cable Information Services (Wisconsin), LLC
|
|
Delaware
|
|
20-0163685
|
|
|
|
|
|
Time Warner Cable International LLC
|
|
Delaware
|
|
32-0423657
|
|
|
|
|
|
Time Warner Cable Internet Holdings III LLC
|
|
Delaware
|
|
30-0800781
|
|
|
|
|
|
Time Warner Cable Internet Holdings LLC
|
|
Delaware
|
|
80-0845781
|
|
|
|
|
|
Time Warner Cable Internet LLC
|
|
Delaware
|
|
13-4008284
|
|
|
|
|
|
Time Warner Cable, LLC
|
|
Delaware
|
|
81-2545593
|
|
|
|
|
|
Time Warner Cable Media LLC
|
|
Delaware
|
|
27-4633156
|
|
|
|
|
|
Time Warner Cable Midwest LLC
|
|
Delaware
|
|
45-4593320
|
|
|
|
|
|
Time Warner Cable New York City LLC
|
|
Delaware
|
|
45-4593291
|
|
|
|
|
|
Time Warner Cable Northeast LLC
|
|
Delaware
|
|
45-4593341
|
|
|
|
|
|
Time Warner Cable Pacific West LLC
|
|
Delaware
|
|
45-4593361
|
|
|
|
|
|
Time Warner Cable Services LLC
|
|
Delaware
|
|
61-1446887
|
|
|
|
|
|
Time Warner Cable Southeast LLC
|
|
Delaware
|
|
45-4608839
|
|
|
|
|
|
Time Warner Cable Sports LLC
|
|
Delaware
|
|
45-1560066
|
|
|
|
|
|
Time Warner Cable Texas LLC
|
|
Delaware
|
|
45-4608769
|
|
|
|
|
|
TWC Administration LLC
|
|
Delaware
|
|
90-0882471
|
|
|
|
|
|
TWC Communications, LLC
|
|
Delaware
|
|
35-2205910
|
|
|
|
|
|
TWC Digital Phone LLC
|
|
Delaware
|
|
26-0354307
|
|
|
|
|
|
|
|
Exact Name of Additional Registrant Guarantor as
Specified in Its Charter
|
|
Jurisdiction of Incorporation or
Organization
|
|
I.R.S. Employer
Identification
Number
|
|
|
|
|
|
TWC Media Blocker LLC
|
|
Delaware
|
|
81-2620702
|
|
|
|
|
|
TWC News and Local Programming Holdco LLC
|
|
Delaware
|
|
45-4275480
|
|
|
|
|
|
TWC News and Local Programming LLC
|
|
Delaware
|
|
45-1560311
|
|
|
|
|
|
TWC Regional Sports Network I LLC
|
|
Delaware
|
|
45-1560617
|
|
|
|
|
|
TWC Security LLC
|
|
Delaware
|
|
27-3884185
|
|
|
|
|
|
TWC SEE Holdco LLC
|
|
Delaware
|
|
20-5421447
|
|
|
|
|
|
TWC Wireless LLC
|
|
Delaware
|
|
20-3364329
|
|
|
|
|
|
TWC/Charter Dallas Cable Advertising, LLC
|
|
Delaware
|
|
26-2980350
|
|
|
|
|
|
TWC/Charter Green Bay Cable Advertising, LLC
|
|
Delaware
|
|
20-4932897
|
|
|
|
|
|
TWC/Charter Los Angeles Cable Advertising, LLC
|
|
Delaware
|
|
26-1900064
|
|
|
|
|
|
TWCIS Holdco LLC
|
|
Delaware
|
|
27-3481972
|
|
|
|
|
|
Vista Broadband Communications, LLC
|
|
Delaware
|
|
52-2085522
|
|
|
|
|
|
VOIP Transfers (AL), LLC
|
|
Delaware
|
|
47-0999828
|
|
|
|
|
|
VOIP Transfers (CA), LLC
|
|
Delaware
|
|
47-1000086
|
|
|
|
|
|
VOIP Transfers (GA), LLC
|
|
Delaware
|
|
47-0999989
|
|
|
|
|
|
VOIP Transfers (NC), LLC
|
|
Delaware
|
|
47-1010918
|
|
|
|
|
|
VOIP Transfers (TN), LLC
|
|
Delaware
|
|
47-1010858
|
|
|
|
|
|
VOIP Transfers (VA), LLC
|
|
Delaware
|
|
47-1011025
|
|
|
|
|
|
Wisconsin Procurement Holdco LLC
|
|
Delaware
|
|
81-2603589
|
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-4 is being filed for the sole purpose of filing additional exhibits to the
registration statement. No other changes have been made to the registration statement. Accordingly, this amendment consists only of the facing page, this explanatory note and Part II of the registration statement.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers
Delaware
Each of Charter
Communications Operating, LLC, Charter Communications Operating Capital Corp., CCO Holdings, LLC, AdCast North Carolina Cable Advertising, LLC, Alabanza LLC, America’s Job Exchange LLC, American Cable Entertainment Company, LLC, Athens
Cablevision, LLC, BHN Home Security Services, LLC, BHN Spectrum Investments, LLC, Bresnan Broadband Holdings, LLC, Bresnan Broadband of Colorado, LLC, Bresnan Communications, LLC, Bresnan Digital Services, LLC, Bresnan Microwave of Montana, LLC,
Bright House Networks Information Services (Alabama), LLC, Bright House Networks Information Services (California), LLC, Bright House Networks Information Services (Florida), LLC, Bright House Networks Information Services (Indiana), LLC, Bright
House Networks Information Services (Michigan), LLC, Bright House Networks, LLC, Cable Equities Colorado, LLC, Cable Equities of Colorado Management LLC, CC 10, LLC, CC Fiberlink, LLC, CC Michigan, LLC, CC Systems, LLC, CC V Holdings, LLC, CC VI
Fiberlink, LLC, CC VI Operating Company, LLC, CC VII Fiberlink, LLC, CC VIII Fiberlink, LLC, CC VIII Holdings, LLC, CC VIII Operating, LLC, CC VIII, LLC, CCO Fiberlink, LLC, CCO Holdco Transfers VII, LLC, CCO LP, LLC, CCO NR Holdings, LLC, CCO
Purchasing, LLC, CCO SoCal I, LLC, CCO SoCal II, LLC, CCO SoCal Vehicles, LLC, CCO Transfers, LLC, Charter Advanced Services (AL), LLC, Charter Advanced Services (CA), LLC, Charter Advanced Services (CO), LLC, Charter Advanced Services (CT), LLC,
Charter Advanced Services (GA), LLC, Charter Advanced Services (IL), LLC, Charter Advanced Services (IN), LLC, Charter Advanced Services (KY), LLC, Charter Advanced Services (LA), LLC, Charter Advanced Services (MA), LLC, Charter Advanced Services
(MD), LLC, Charter Advanced Services (MI), LLC, Charter Advanced Services (MN), LLC, Charter Advanced Services (MO), LLC, Charter Advanced Services (MS), LLC, Charter Advanced Services (MT), LLC, Charter Advanced Services (NC), LLC, Charter Advanced
Services (NE), LLC, Charter Advanced Services (NH), LLC, Charter Advanced Services (NV), LLC, Charter Advanced Services (NY), LLC, Charter Advanced Services (OH), LLC, Charter Advanced Services (OR), LLC, Charter Advanced Services (PA), LLC, Charter
Advanced Services (SC), LLC, Charter Advanced Services (TN), LLC, Charter Advanced Services (TX), LLC, Charter Advanced Services (UT), LLC, Charter Advanced Services (VA), LLC, Charter Advanced Services (VT), LLC, Charter Advanced Services (WA),
LLC, Charter Advanced Services (WI), LLC, Charter Advanced Services (WV), LLC, Charter Advanced Services (WY), LLC, Charter Advanced Services VIII (MI), LLC, Charter Advanced Services VIII (MN), LLC, Charter Advanced Services VIII (WI), LLC, Charter
Advertising of Saint Louis, LLC, Charter Cable Operating Company, LLC, Charter Cable Partners, LLC, Charter Communications Entertainment I, LLC, Charter Communications Entertainment II, LLC, Charter Communications Entertainment, LLC, Charter
Communications of California, LLC, Charter Communications Properties LLC, Charter Communications Ventures, LLC, Charter Communications VI, L.L.C., Charter Communications VII, LLC, Charter Communications, LLC, Charter Distribution, LLC, Charter
Fiberlink – Alabama, LLC, Charter Fiberlink – Georgia, LLC, Charter Fiberlink - Illinois, LLC, Charter Fiberlink – Maryland II, LLC, Charter Fiberlink – Michigan, LLC, Charter Fiberlink – Missouri, LLC, Charter Fiberlink
– Nebraska, LLC, Charter Fiberlink – Pennsylvania, LLC, Charter Fiberlink – Tennessee, LLC, Charter Fiberlink AR-CCVII, LLC, Charter Fiberlink CA-CCO, LLC, Charter Fiberlink CC VIII, LLC, Charter Fiberlink CCO, LLC, Charter Fiberlink
CT-CCO, LLC, Charter Fiberlink LA-CCO, LLC, Charter Fiberlink MA-CCO, LLC, Charter Fiberlink MS-CCVI, LLC, Charter Fiberlink NC-CCO, LLC, Charter Fiberlink NH-CCO, LLC, Charter Fiberlink NV-CCVII, LLC, Charter Fiberlink NY-CCO, LLC, Charter
Fiberlink OH-CCO, LLC, Charter Fiberlink OR-CCVII, LLC, Charter Fiberlink SC-CCO, LLC, Charter Fiberlink TX-CCO, LLC, Charter Fiberlink VA-CCO, LLC, Charter Fiberlink VT-CCO, LLC, Charter Fiberlink WA-CCVII, LLC, Charter Helicon, LLC, Charter Home
Security, LLC, Charter Leasing Holding Company, LLC, Charter Leasing of Wisconsin, LLC, Charter RMG, LLC, Charter Stores FCN, LLC, Charter Video Electronics, LLC, DukeNet Communications Holdings, LLC, DukeNet Communications, LLC, Falcon Cable
Communications, LLC, Falcon
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Community Cable, L.P., Falcon First Cable of the Southeast, LLC, Falcon First, LLC, Falcon Video Communications, L.P., Helicon Partners I, L.P., Hometown T.V., LLC, HPI Acquisition Co. LLC, ICI
Holdings, LLC, Insight Blocker LLC, Insight Capital LLC, Insight Communications Company, L.P., Insight Communications Midwest, LLC, Insight Communications of Central Ohio, LLC, Insight Communications of Kentucky, L.P., Insight Interactive, LLC,
Insight Kentucky Capital, LLC, Insight Kentucky Partners I, L.P., Insight Kentucky Partners II, L.P., Insight Midwest Holdings, LLC, Insight Midwest, L.P., Insight Phone of Indiana, LLC, Insight Phone of Kentucky, LLC, Insight Phone of Ohio, LLC,
Interactive Cable Services, LLC, Interlink Communications Partners, LLC, Intrepid Acquisition LLC, Long Beach, LLC, Marcus Cable Associates, L.L.C., Marcus Cable of Alabama, L.L.C., Marcus Cable, LLC, Midwest Cable Communications, LLC, NaviSite LLC,
New Wisconsin Procurement LLC, Oceanic Time Warner Cable LLC, Parity Assets LLC, Peachtree Cable TV, L.P., Peachtree Cable TV, LLC, Phone Transfers (AL), LLC, Phone Transfers (CA), LLC, Phone Transfers (GA), LLC, Phone Transfers (NC), LLC, Phone
Transfers (TN), LLC, Phone Transfers (VA), LLC, Renaissance Media LLC, Rifkin Acquisition Partners, LLC, Robin Media Group, LLC, Scottsboro TV Cable, LLC, The Helicon Group, L.P., Time Warner Cable Business LLC, Time Warner Cable Enterprises LLC,
Time Warner Cable Information Services (Alabama), LLC, Time Warner Cable Information Services (Arizona), LLC, Time Warner Cable Information Services (California), LLC, Time Warner Cable Information Services (Colorado), LLC, Time Warner Cable
Information Services (Hawaii), LLC, Time Warner Cable Information Services (Idaho), LLC, Time Warner Cable Information Services (Illinois), LLC, Time Warner Cable Information Services (Indiana), LLC, Time Warner Cable Information Services (Kansas),
LLC, Time Warner Cable Information Services (Kentucky), LLC, Time Warner Cable Information Services (Maine), LLC, Time Warner Cable Information Services (Massachusetts), LLC, Time Warner Cable Information Services (Michigan), LLC, Time Warner Cable
Information Services (Missouri), LLC, Time Warner Cable Information Services (Nebraska), LLC, Time Warner Cable Information Services (New Hampshire), LLC, Time Warner Cable Information Services (New Jersey), LLC, Time Warner Cable Information
Services (New Mexico), LLC, Time Warner Cable Information Services (New York), LLC, Time Warner Cable Information Services (North Carolina), LLC, Time Warner Cable Information Services (Ohio), LLC, Time Warner Cable Information Services
(Pennsylvania), LLC, Time Warner Cable Information Services (South Carolina), LLC, Time Warner Cable Information Services (Tennessee), LLC, Time Warner Cable Information Services (Texas), LLC, Time Warner Cable Information Services (Virginia), LLC,
Time Warner Cable Information Services (Washington), LLC, Time Warner Cable Information Services (West Virginia), LLC, Time Warner Cable Information Services (Wisconsin), LLC, Time Warner Cable International LLC, Time Warner Cable Internet Holdings
III LLC, Time Warner Cable Internet Holdings LLC, Time Warner Cable Internet LLC, Time Warner Cable, LLC, Time Warner Cable Media LLC, Time Warner Cable Midwest LLC, Time Warner Cable New York City LLC, Time Warner Cable Northeast LLC, Time Warner
Cable Pacific West LLC, Time Warner Cable Services LLC, Time Warner Cable Southeast LLC, Time Warner Cable Sports LLC, Time Warner Cable Texas LLC, TWC Administration LLC, TWC Communications, LLC, TWC Digital Phone LLC, TWC Media Blocker LLC, TWC
News and Local Programming Holdco LLC, TWC News and Local Programming LLC, TWC Regional Sports Network I LLC, TWC Security LLC, TWC SEE Holdco LLC, TWC Wireless LLC, TWC/Charter Dallas Cable Advertising, LLC, TWC/Charter Green Bay Cable Advertising,
LLC, TWC/Charter Los Angeles Cable Advertising, LLC, TWCIS Holdco LLC, Vista Broadband Communications, LLC, VOIP Transfers (AL), LLC, VOIP Transfers (CA), LLC, VOIP Transfers (GA), LLC, VOIP Transfers (NC), LLC, VOIP Transfers (TN), LLC,VOIP
Transfers (VA), LLC and Wisconsin Procurement Holdco LLC, is formed or incorporated under the laws of the State of Delaware.
Limited
Liability Companies
Section 18-108 of the Delaware Limited Liability Company Act authorizes a limited liability company to
indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement.
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The certificates of formation of CC VIII Operating, LLC, CC VIII, LLC, Falcon First Cable of the
Southeast, LLC, Falcon First, LLC and Insight Capital LLC provide for indemnification of all persons who may be indemnified under Section 18-108 of the Delaware Limited Liability Company Act to the fullest extent permitted by such section.
The limited liability company agreements of Charter Communications Operating, LLC, CCO Holdings, LLC, AdCast North Carolina Cable Advertising,
LLC, Alabanza LLC, America’s Job Exchange LLC, American Cable Entertainment Company, LLC, Athens Cablevision, LLC, BHN Home Security Services, LLC, BHN Spectrum Investments, LLC, Bresnan Broadband Holdings, LLC, Bresnan Broadband of Colorado,
LLC, Bresnan Communications, LLC, Bresnan Digital Services, LLC, Bresnan Microwave of Montana, LLC, Bright House Networks Information Services (Alabama), LLC, Bright House Networks Information Services (California), LLC, Bright House Networks
Information Services (Florida), LLC, Bright House Networks Information Services (Indiana), LLC, Bright House Networks Information Services (Michigan), LLC, Bright House Networks, LLC, Cable Equities Colorado, LLC, Cable Equities of Colorado
Management LLC, CC 10, LLC, CC Fiberlink, LLC, CC Michigan, LLC, CC Systems, LLC, CC V Holdings, LLC, CC VI Fiberlink, LLC, CC VI Operating Company, LLC, CC VII Fiberlink, LLC, CC VIII Fiberlink, LLC, CC VIII Holdings, LLC, CC VIII Operating, LLC,
CCO Fiberlink, LLC, CCO Holdco Transfers VII, LLC, CCO LP, LLC, CCO NR Holdings, LLC, CCO Purchasing, LLC, CCO SoCal I, LLC, CCO SoCal II, LLC, CCO SoCal Vehicles, LLC, CCO Transfers, LLC, Charter Advanced Services (AL), LLC, Charter Advanced
Services (CA), LLC, Charter Advanced Services (CO), LLC, Charter Advanced Services (CT), LLC, Charter Advanced Services (GA), LLC, Charter Advanced Services (IL), LLC, Charter Advanced Services (IN), LLC, Charter Advanced Services (KY), LLC, Charter
Advanced Services (LA), LLC, Charter Advanced Services (MA), LLC, Charter Advanced Services (MD), LLC, Charter Advanced Services (MI), LLC, Charter Advanced Services (MN), LLC, Charter Advanced Services (MO), LLC, Charter Advanced Services (MS),
LLC, Charter Advanced Services (MT), LLC, Charter Advanced Services (NC), LLC, Charter Advanced Services (NE), LLC, Charter Advanced Services (NH), LLC, Charter Advanced Services (NV), LLC, Charter Advanced Services (NY), LLC, Charter Advanced
Services (OH), LLC, Charter Advanced Services (OR), LLC, Charter Advanced Services (PA), LLC, Charter Advanced Services (SC), LLC, Charter Advanced Services (TN), LLC, Charter Advanced Services (TX), LLC, Charter Advanced Services (UT), LLC, Charter
Advanced Services (VA), LLC, Charter Advanced Services (VT), LLC, Charter Advanced Services (WA), LLC, Charter Advanced Services (WI), LLC, Charter Advanced Services (WV), LLC, Charter Advanced Services (WY), LLC, Charter Advanced Services VIII
(MI), LLC, Charter Advanced Services VIII (MN), LLC, Charter Advanced Services VIII (WI), LLC, Charter Advertising of Saint Louis, LLC, Charter Cable Operating Company, LLC, Charter Cable Partners, LLC, Charter Communications Entertainment I, LLC,
Charter Communications Entertainment II, LLC, Charter Communications Entertainment, LLC, Charter Communications of California, LLC, Charter Communications Properties LLC, Charter Communications Ventures, LLC, Charter Communications VI, L.L.C.,
Charter Communications VII, LLC, Charter Communications, LLC, Charter Distribution, LLC, Charter Fiberlink – Alabama, LLC, Charter Fiberlink – Georgia, LLC, Charter Fiberlink - Illinois, LLC, Charter Fiberlink – Maryland II, LLC,
Charter Fiberlink – Michigan, LLC, Charter Fiberlink – Missouri, LLC, Charter Fiberlink – Nebraska, LLC, Charter Fiberlink – Pennsylvania, LLC, Charter Fiberlink – Tennessee, LLC, Charter Fiberlink AR-CCVII, LLC, Charter
Fiberlink CA-CCO, LLC, Charter Fiberlink CC VIII, LLC, Charter Fiberlink CCO, LLC, Charter Fiberlink CT-CCO, LLC, Charter Fiberlink LA-CCO, LLC, Charter Fiberlink MA-CCO, LLC, Charter Fiberlink MS-CCVI, LLC, Charter Fiberlink NC-CCO, LLC, Charter
Fiberlink NH-CCO, LLC, Charter Fiberlink NV-CCVII, LLC, Charter Fiberlink NY-CCO, LLC, Charter Fiberlink OH-CCO, LLC, Charter Fiberlink OR-CCVII, LLC, Charter Fiberlink SC-CCO, LLC, Charter Fiberlink TX-CCO, LLC, Charter Fiberlink VA-CCO, LLC,
Charter Fiberlink VT-CCO, LLC, Charter Fiberlink WA-CCVII, LLC, Charter Helicon, LLC, Charter Home Security, LLC, Charter Leasing Holding Company, LLC, Charter Leasing of Wisconsin, LLC, Charter RMG, LLC, Charter Stores FCN, LLC, Charter Video
Electronics, LLC, DukeNet Communications Holdings, LLC, DukeNet Communications, LLC, Falcon Cable Communications, LLC, Falcon First Cable of the Southeast, LLC, Falcon First, LLC, Hometown T.V., LLC, HPI Acquisition Co. LLC, ICI Holdings, LLC,
Insight Blocker LLC, Insight Capital LLC, Insight Communications Midwest, LLC, Insight Communications of Central Ohio, LLC, Insight Interactive, LLC, Insight Kentucky Capital, LLC, Insight
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Midwest Holdings, LLC, Insight Phone of Indiana, LLC, Insight Phone of Kentucky, LLC, Insight Phone of Ohio, LLC, Interactive Cable Services, LLC, Interlink Communications Partners, LLC, Intrepid
Acquisition LLC, Long Beach, LLC, Marcus Cable Associates, L.L.C., Marcus Cable of Alabama, L.L.C., Marcus Cable, LLC, Midwest Cable Communications, LLC, NaviSite LLC, New Wisconsin Procurement LLC, Oceanic Time Warner Cable LLC, Parity Assets LLC,
Peachtree Cable TV, LLC, Phone Transfers (AL), LLC, Phone Transfers (CA), LLC, Phone Transfers (GA), LLC, Phone Transfers (NC), LLC, Phone Transfers (TN), LLC, Phone Transfers (VA), LLC, Renaissance Media LLC, Rifkin Acquisition Partners, LLC, Robin
Media Group, LLC, Scottsboro TV Cable, LLC, Time Warner Cable Business LLC, Time Warner Cable Enterprises LLC, Time Warner Cable Information Services (Alabama), LLC, Time Warner Cable Information Services (Arizona), LLC, Time Warner Cable
Information Services (California), LLC, Time Warner Cable Information Services (Colorado), LLC, Time Warner Cable Information Services (Hawaii), LLC, Time Warner Cable Information Services (Idaho), LLC, Time Warner Cable Information Services
(Illinois), LLC, Time Warner Cable Information Services (Indiana), LLC, Time Warner Cable Information Services (Kansas), LLC, Time Warner Cable Information Services (Kentucky), LLC, Time Warner Cable Information Services (Maine), LLC, Time Warner
Cable Information Services (Massachusetts), LLC, Time Warner Cable Information Services (Michigan), LLC, Time Warner Cable Information Services (Missouri), LLC, Time Warner Cable Information Services (Nebraska), LLC, Time Warner Cable Information
Services (New Hampshire), LLC, Time Warner Cable Information Services (New Jersey), LLC, Time Warner Cable Information Services (New Mexico), LLC, Time Warner Cable Information Services (New York), LLC, Time Warner Cable Information Services (North
Carolina), LLC, Time Warner Cable Information Services (Ohio), LLC, Time Warner Cable Information Services (Pennsylvania), LLC, Time Warner Cable Information Services (South Carolina), LLC, Time Warner Cable Information Services (Tennessee), LLC,
Time Warner Cable Information Services (Texas), LLC, Time Warner Cable Information Services (Virginia), LLC, Time Warner Cable Information Services (Washington), LLC, Time Warner Cable Information Services (West Virginia), LLC, Time Warner Cable
Information Services (Wisconsin), LLC, Time Warner Cable International LLC, Time Warner Cable Internet Holdings III LLC, Time Warner Cable Internet Holdings LLC, Time Warner Cable Internet LLC, Time Warner Cable, LLC, Time Warner Cable Media LLC,
Time Warner Cable Midwest LLC, Time Warner Cable New York City LLC, Time Warner Cable Northeast LLC, Time Warner Cable Pacific West LLC, Time Warner Cable Services LLC, Time Warner Cable Southeast LLC, Time Warner Cable Sports LLC, Time Warner Cable
Texas LLC, TWC Administration LLC, TWC Communications, LLC, TWC Digital Phone LLC, TWC Media Blocker LLC, TWC News and Local Programming Holdco LLC, TWC News and Local Programming LLC, TWC Regional Sports Network I LLC, TWC Security LLC, TWC SEE
Holdco LLC, TWC Wireless LLC, TWC/Charter Dallas Cable Advertising, LLC, TWC/Charter Los Angeles Cable Advertising, LLC, TWCIS Holdco LLC, Vista Broadband Communications, LLC, VOIP Transfers (AL), LLC, VOIP Transfers (CA), LLC, VOIP Transfers (GA),
LLC, VOIP Transfers (NC), LLC, VOIP Transfers (TN), LLC, VOIP Transfers (VA), LLC and Wisconsin Procurement Holdco LLC (each, an “LLC”) provide that a member, a manager, a director, any officer, their respective affiliates or any person
who at any time serves or has served as a director, officer, employee or other agent of any member or any such affiliate, and who, in such capacity, engages or has engaged in activities on behalf of the applicable LLC, shall be indemnified and held
harmless by such LLC to the fullest extent permitted by law from and against any losses, damages, expenses, including attorneys’ fees, judgments and amounts paid in settlement actually and reasonably incurred by or in connection with any claim,
action, suit or proceeding to which such indemnifiable person is or was a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of such LLC. Notwithstanding the foregoing, no
indemnification is available under the limited liability company agreement of any of the LLCs in respect of any such claim adjudged to be primarily the result of bad faith, willful misconduct or fraud of an indemnifiable person. Any act or omission
by an indemnifiable person done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care shall not constitute bad faith, willful misconduct, or fraud on the part of such indemnifiable person.
Payment of these indemnification obligations shall be made from the assets of the applicable LLC and the members shall not be personally liable to an indemnifiable person for payment of indemnification.
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The limited liability company agreement of CC VIII, LLC (“CC VIII”) provides that, to
the extent permitted by applicable law, a member, a manager, a director, or an officer, their respective affiliates shall be entitled to indemnification from CC VIII for any loss, damage, or claim incurred by such person by reason of any act or
omission performed or omitted by such person in good faith on behalf of, or in connection with the business and affairs of, CC VIII and in a manner reasonably believed to be within the scope of authority conferred on such person; provided that any
such indemnity shall be provided out of and to the extent of CC VIII’s assets only.
The limited liability company agreement of
TWC/Charter Green Bay Cable Advertising, LLC (“Green Bay”) provides that Green Bay shall indemnify the members and their respective affiliates, shareholders, partners, members, employees, officers and directors, for, and hold them harmless
from, any liability, whether civil or criminal, and any loss, damage, or expense, including reasonable attorneys’ fees, to the extent that such arise from and are the result of the ordinary and proper conduct of Green Bay’s business and
the preservation of its business and property, or arise by reason of the fact that such person is or was a member or an officer, director or employee thereof; provided the member or person to be indemnified acted in good faith. The obligation of
Green Bay to indemnify the members or any other person shall be satisfied out of Green Bay’s assets only.
Corporations
Section 145 of the Delaware General Corporation Law authorizes a corporation to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. In addition, the Delaware General Corporation Law does not permit
indemnification in any threatened, pending or completed action or suit by or in the right of the corporation in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only
to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses, which such court shall deem proper. To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to
above, or in defense of any claim, issue or matter, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended. The Delaware General Corporation Law also allows a corporation to provide for the elimination or limit of the personal liability of a director to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director
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(i)
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for any breach of the director’s duty of loyalty to the corporation or its stockholders,
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(ii)
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
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(iii)
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for unlawful payments of dividends or unlawful stock purchases or redemptions, or
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(iv)
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for any transaction from which the director derived an improper personal benefit. These provisions will not limit the liability of directors or officers under the federal securities laws of the United States.
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The bylaws of CCO Capital require it, to the fullest extent authorized by the Delaware General Corporation Law, to
indemnify any person who was or is made a party or is threatened to be made a party or is otherwise involved in any action, suit or proceeding by reason of the fact that he is or was a director or officer of CCO
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Capital or is or was serving at the request of CCO Capital as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
entity or enterprise, in each case, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in
connection therewith.
Limited Partnerships
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act provides that a limited partnership may, and shall have the power
to, indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever, subject to such standards and restrictions set forth in the partnership agreement.
The limited partnership agreements of Falcon Community Cable, L.P., Falcon Video Communications, L.P., Helicon Partners I, L.P., Peachtree
Cable TV, L.P., The Helicon Group, L.P., Insight Communications Company, L.P., Insight Communications of Kentucky, L.P., Insight Kentucky Partners I, L.P., Insight Kentucky Partners II, L.P. and Insight Midwest, L.P. (each, a
“Partnership”) provide that a partner, any of such partner’s affiliates or any person who at any time serves or has served as a director, officer, employee or other agent of any partner or any such affiliate, and who, in such
capacity, engages or has engaged in activities on behalf of the applicable Partnership, shall be indemnified and held harmless by such Partnership against any losses, damages, expenses, including attorneys’ fees, judgments and amounts paid in
settlement actually and reasonably incurred by or in connection with any claim, action, suit or proceeding to which such indemnifiable person is or was a party or is threatened to be made a party by reason of the fact that such person is or was
engaged in activities on behalf of such Partnership. Notwithstanding the foregoing, no indemnification is available under the limited partnership agreement of any of the Partnerships in respect of any such claim adjudged to be primarily the result
of bad faith, willful misconduct or fraud of an indemnifiable person. Any act or omission by an indemnifiable person done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care shall not
constitute bad faith, willful misconduct, or fraud on the part of such indemnifiable person. Payment of these indemnification obligations shall be made from the assets of the applicable Partnership and the partners shall not be personally liable to
an indemnifiable person for payment of indemnification.
Colorado
Section 7-80-104(1)(k) of the Colorado Limited Liability Company Act permits a company to indemnify a member or manager or former member
or manager of the limited liability company as provided in Section 7-80-407. Under Section 7-80-407, a limited liability company shall reimburse a member or manager for payments made, and indemnify a member or manager for liabilities
incurred by the member or manager, in the ordinary conduct of the business of the limited liability company or for the preservation of its business or property if such payments were made or liabilities incurred without violation of the member’s
or manager’s duties to the limited liability company.
The Limited Liability Company Agreement of Bresnan Broadband of Colorado, LLC
provides for the indemnification of officers and directors to the fullest extent permitted by Colorado law.
Montana
Section 38-8-504 of the Montana Limited Liability Company Act states that a limited liability company shall reimburse a member or manager
for payments made and indemnify a member or manager for liabilities incurred by the member or manager in the ordinary course of the business of the company or for the preservation of its business or property.
The Limited Liability Company Agreement of Bresnan Broadband of Montana, LLC provides for the indemnification of officers and directors to the
fullest extent permitted by Montana law.
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Utah
Section 48-2c-1802 of the Utah Revised Limited Liability Company Act permits a company to indemnify an individual made a party to a
proceeding because he is or was a manager against liability incurred in the proceeding if: (a) his conduct was in good faith; (b) he reasonably believed that his conduct was in, or not opposed to, the company’s best interests; and
(c) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A manager’s conduct with respect to any employee benefit plan for a purpose he reasonably believed to be in, or not opposed to, the
interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of Subsection (1)(b).
The
Limited Liability Company Agreement of Bresnan Broadband of Utah, LLC provides for the indemnification of officers and directors to the fullest extent permitted by Utah law.
Wyoming
Section 17-29-408 of
the Wyoming Limited Liability Company Act permits a Wyoming limited liability company to indemnify any member of a member-manager company or any manager of a manager-managed company for any debt, obligation or other liability incurred by such member
or manager in the course of the member’s or manager’s activities on behalf of the Wyoming limited liability company, if in making the payment or incurring the debt, obligation or other liability, the member or manager was acting within the
scope of his or her duties.
The Limited Liability Company Agreement of Bresnan Broadband of Wyoming, LLC provides for the indemnification
of officers and directors to the fullest extent permitted by Wyoming law.
California
The limited partnership agreements of Falcon Cable Media, a California Limited Partnership, Falcon Cable Systems Company II, L.P., Falcon
Cablevision, a California Limited Partnership, Falcon Community Ventures I Limited Partnership and Falcon Telecable, a California Limited Partnership (each, a “California Partnership”) provide that a partner, any of such partner’s
affiliates or any person who at any time serves or has served as a director, officer, employee or other agent of any partner or any such affiliate, and who, in such capacity, engages or has engaged in activities on behalf of the applicable
California Partnership, shall be indemnified and held harmless by such California Partnership against any losses, damages, expenses, including attorneys’ fees, judgments and amounts paid in settlement actually and reasonably incurred by or in
connection with any claim, action, suit or proceeding to which such indemnifiable person is or was a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of such California
Partnership. Notwithstanding the foregoing, no indemnification is available under the limited partnership agreement of any of the California Partnerships in respect of any such claim adjudged to be primarily the result of bad faith, willful
misconduct or fraud of an indemnifiable person. Any act or omission by an indemnifiable person done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care shall not constitute bad faith, willful
misconduct, or fraud on the part of such indemnifiable person. Payment of these indemnification obligations shall be made from the assets of the applicable California Partnership and the partners shall not be personally liable to an indemnifiable
person for payment of indemnification.
Section 15904.06 (Operative January 1, 2008) of the 2008 California Revised Limited
Partnership Act addresses the rights of a general partner with respect to its management and conduct of partnership activities. The 2008 California Revised Limited Partnership Act provides that a limited partnership shall reimburse a general partner
for payments made, and indemnify a general partner for liabilities incurred by, the general partner in the ordinary course of the activities of the partnership or for the preservation of its activities or property.
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Item 21. Exhibits and Financial Statement Schedules.
Exhibits
Reference is made to the Exhibit Index
filed as part of this Registration Statement.
Financial Statement Schedules
Schedules not listed above are omitted because of the absence of the conditions under which they are required or because the information required by such
omitted schedules is set forth in the financial statements or the notes thereto.
Item 22. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule
430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.
Provided
,
however
, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to
such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of
the securities, in a primary offering of securities of the undersigned registrant
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pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule
424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or
referred to by the undersigned registrants;
(iii) the portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrants; and
(iv)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) That, for purposes of determining any
liability under the Securities Act, each filing of the registrants’ annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrants hereby undertake to respond to
requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(d) The undersigned registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the
opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities, other than the payment by the registrants
of expenses incurred or paid by a director, officer, or controlling person of the registrants in the successful defense of any action, suit or proceeding, is asserted by such director, officer, or controlling person in connection with the securities
being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public
policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrants have duly caused this registration statement to be signed on their
behalf by the undersigned, thereunto duly authorized, in the County of Fairfield, State of Connecticut, on October 7, 2016.
|
|
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|
CHARTER COMMUNICATIONS OPERATING, LLC
|
|
Registrant
|
|
|
|
|
By:
|
|
/s/ Kevin D. Howard
|
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|
|
Kevin D. Howard
|
|
|
|
Senior Vice President—Finance, Controller and Chief Accounting Officer
|
|
|
|
CHARTER COMMUNICATIONS OPERATING CAPITAL CORP.,
|
|
Registrant
|
|
|
|
|
By:
|
|
/s/ Kevin D. Howard
|
|
|
|
Kevin D. Howard
|
|
|
|
Senior Vice President—Finance, Controller and Chief Accounting Officer
|
|
|
|
CCO HOLDINGS, LLC
|
|
Registrant
|
|
|
|
|
By:
|
|
/s/ Kevin D. Howard
|
|
|
|
Kevin D. Howard
|
|
|
|
Senior Vice President—Finance, Controller and Chief Accounting Officer
|
|
|
|
EACH OF THE ADDITIONAL REGISTRANT GUARANTORS NAMED ON THE TABLE OF ADDITIONAL REGISTRANT GUARANTORS
|
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|
|
|
By:
|
|
/s/ Kevin D. Howard
|
|
|
|
Kevin D. Howard
|
|
|
|
Senior Vice President—Finance, Controller and Chief Accounting Officer
|
S-1
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has
been signed by the following persons in the capacities and on the dates indicated below on behalf of each of Charter Communications Operating, LLC, CCO Holdings, LLC and each of the additional Registrant Guarantors named on the Table of Additional
Registrant Guarantors.
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Signature
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Title
|
|
Date
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|
|
|
|
*
Thomas M. Rutledge
|
|
President and Chief Executive Officer
(Principal Executive Officer)
|
|
October 7, 2016
|
|
|
|
|
|
*
Christopher L. Winfrey
|
|
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
|
|
October 7, 2016
|
|
|
|
|
|
/s/ Kevin D. Howard
Kevin D. Howard
|
|
Senior Vice President—Finance,
Controller and Chief Accounting
Officer (Controller/Principal Accounting Officer)
|
|
October 7, 2016
|
|
|
|
|
|
*By:
|
|
/s/ Kevin D. Howard
|
|
|
|
Kevin D. Howard
|
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|
|
Attorney-in-Fact
|
S-2
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has
been signed by the following persons in the capacities and on the dates indicated below on behalf of Charter Communications Operating Capital Corp.
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|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
*
Thomas M. Rutledge
|
|
President and Chief Executive Officer (Principal Executive Officer)
|
|
October 7, 2016
|
|
|
|
|
|
*
Christopher L. Winfrey
|
|
Executive Vice President and
Chief Financial Officer, Sole Director
(Principal Financial Officer)
|
|
October 7, 2016
|
|
|
|
|
|
/s/ Kevin D. Howard
Kevin D. Howard
|
|
Senior Vice President—Finance,
Controller and Chief Accounting
Officer (Controller/Principal Accounting Officer)
|
|
October 7, 2016
|
|
|
|
|
|
*By:
|
|
/s/ Kevin D. Howard
|
|
|
|
Kevin D. Howard
|
|
|
|
Attorney-in-Fact
|
S-3
Exhibit Index
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
2.1*
|
|
Agreement and Plan of Mergers, dated as of May 23, 2015, among Time Warner Cable Inc. (“TWC”), Charter Communications, Inc. (“Legacy Charter”), CCH I, LLC (now known as Charter Communications, Inc.
“Charter”), and certain other parties thereto (incorporated herein by reference to Exhibit 2.1 to Charter’s Registration Statement on Form S-4 dated and filed with the SEC on June 25, 2015 (File No. 333-205240) (the “Merger Form
S-4”))
|
|
|
|
|
2.2*
|
|
Contribution Agreement, dated as of March 31, 2015, as amended on May 23, 2015, by and among Legacy Charter, Charter, Advance/Newhouse Partnership (“A/N”) and certain other parties thereto (incorporated herein by reference
to Exhibit 2.2 to the Merger Form S-4)
|
|
|
|
|
3.1**
|
|
Certificate of Formation of Charter Communications Operating, LLC
|
|
|
|
|
3.2**
|
|
Second Amended and Restated Limited Liability Company Agreement of Charter Communications Operating, LLC
|
|
|
|
|
3.3**
|
|
Amended and Restated Certificate of Incorporation of Charter Communications Operating Capital Corp.
|
|
|
|
|
3.4**
|
|
Bylaws of Charter Communications Operating Capital Corp.
|
|
|
|
|
3.5**
|
|
Certificate of Formation of CCO Holdings, LLC, as amended
|
|
|
|
|
3.6**
|
|
Second Amended and Restated Limited Liability Company Agreement of CCO Holdings, LLC
|
|
|
|
|
3.7**
|
|
Certificate of Formation of American Cable Entertainment Company, LLC
|
|
|
|
|
3.8**
|
|
Limited Liability Company Agreement of American Cable Entertainment Company, LLC, as amended and restated
|
|
|
|
|
3.9**
|
|
Certificate of Formation of Athens Cablevision, LLC
|
|
|
|
|
3.10**
|
|
Limited Liability Company Agreement of Athens Cablevision, LLC, as amended and restated
|
|
|
|
|
3.11**
|
|
Certificate of Formation of Bresnan Broadband Holdings, LLC
|
|
|
|
|
3.12**
|
|
Limited Liability Company Agreement of Bresnan Broadband Holdings, LLC, as amended and restated
|
|
|
|
|
3.13**
|
|
Certificate of Formation of Bresnan Broadband of Colorado, LLC
|
|
|
|
|
3.14**
|
|
Limited Liability Company Agreement of Bresnan Broadband of Colorado, LLC, as amended and restated
|
|
|
|
|
3.15**
|
|
Certificate of Formation of Bresnan Broadband of Montana, LLC
|
|
|
|
|
3.16**
|
|
Limited Liability Company Agreement of Bresnan Broadband of Montana, LLC, as amended and restated
|
|
|
|
|
3.17**
|
|
Articles of Organization of Bresnan Broadband of Utah, LLC
|
|
|
|
|
3.18**
|
|
Limited Liability Company Agreement of Bresnan Broadband of Utah, LLC, as amended and restated
|
|
|
|
|
3.19**
|
|
Articles of Organization of Bresnan Broadband of Wyoming, LLC
|
|
|
|
|
3.20**
|
|
Limited Liability Company Agreement of Bresnan Broadband of Wyoming, LLC, as amended and restated
|
|
|
|
|
3.21**
|
|
Certificate of Formation of Bresnan Communications, LLC
|
|
|
|
|
3.22**
|
|
Limited Liability Company Agreement of Bresnan Communications, LLC, as amended and restated
|
|
|
|
|
3.23**
|
|
Certificate of Formation of Bresnan Digital Services, LLC
|
E-1
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.24**
|
|
Limited Liability Company Agreement of Bresnan Digital Services, LLC, as amended and restated
|
|
|
|
|
3.25**
|
|
Certificate of Formation of Bresnan Microwave of Montana, LLC
|
|
|
|
|
3.26**
|
|
Limited Liability Company Agreement of Bresnan Microwave of Montana, LLC, as amended and restated
|
|
|
|
|
3.27**
|
|
Certificate of Formation of Cable Equities Colorado, LLC
|
|
|
|
|
3.28**
|
|
Limited Liability Company Agreement of Cable Equities Colorado, LLC, as amended and restated
|
|
|
|
|
3.29**
|
|
Certificate of Formation of Cable Equities of Colorado Management LLC
|
|
|
|
|
3.30**
|
|
Limited Liability Company Agreement of Cable Equities of Colorado Management LLC, as amended and restated
|
|
|
|
|
3.31**
|
|
Certificate of Formation of CC 10, LLC
|
|
|
|
|
3.32**
|
|
Limited Liability Company Agreement of CC 10, LLC, as amended and restated
|
|
|
|
|
3.33**
|
|
Certificate of Formation of CC Fiberlink, LLC
|
|
|
|
|
3.34**
|
|
Limited Liability Company Agreement of CC Fiberlink, LLC, as amended and restated
|
|
|
|
|
3.35**
|
|
Certificate of Formation of CC Michigan, LLC
|
|
|
|
|
3.36**
|
|
Limited Liability Company Agreement of CC Michigan, LLC, as amended and restated
|
|
|
|
|
3.37**
|
|
Certificate of Formation of CC Systems, LLC
|
|
|
|
|
3.38**
|
|
Limited Liability Company Agreement of CC Systems, LLC, as amended and restated
|
|
|
|
|
3.39**
|
|
Certificate of Formation of CC V Holdings, LLC
|
|
|
|
|
3.40**
|
|
Limited Liability Company Agreement of CC V Holdings, LLC, as amended and restated
|
|
|
|
|
3.41**
|
|
Certificate of Formation of CC VI Fiberlink, LLC
|
|
|
|
|
3.42**
|
|
Limited Liability Company Agreement of CC VI Fiberlink, LLC, as amended and restated
|
|
|
|
|
3.43**
|
|
Certificate of Formation of CC VI Operating Company, LLC
|
|
|
|
|
3.44**
|
|
Limited Liability Company Agreement of CC VI Operating Company, LLC, as amended and restated
|
|
|
|
|
3.45**
|
|
Certificate of Formation of CC VII Fiberlink, LLC
|
|
|
|
|
3.46**
|
|
Limited Liability Company Agreement of CC VII Fiberlink, LLC, as amended and restated
|
|
|
|
|
3.47**
|
|
Certificate of Formation of CC VIII Fiberlink, LLC
|
|
|
|
|
3.48**
|
|
Limited Liability Company Agreement of CC VIII Fiberlink, LLC, as amended and restated
|
|
|
|
|
3.49**
|
|
Certificate of Formation of CC VIII Holdings, LLC
|
|
|
|
|
3.50**
|
|
Limited Liability Company Agreement of CC VIII Holdings, LLC, as amended and restated
|
|
|
|
|
3.51**
|
|
Certificate of Formation of CC VIII Operating, LLC
|
|
|
|
|
3.52**
|
|
Limited Liability Company Agreement of CC VIII Operating, LLC, as amended and restated
|
|
|
|
|
3.53**
|
|
Certificate of Formation of CC VIII, LLC
|
|
|
|
|
3.54**
|
|
Limited Liability Company Agreement of CC VIII, LLC, as amended and restated
|
|
|
|
|
3.55**
|
|
Certificate of Formation of CCO Fiberlink, LLC
|
|
|
|
|
3.56**
|
|
Limited Liability Company Agreement of CCO Fiberlink, LLC, as amended and restated
|
E-2
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.57**
|
|
Certificate of Formation of CCO Holdco Transfers VII, LLC
|
|
|
|
|
3.58**
|
|
Limited Liability Company Agreement of CCO Holdco Transfers VII, LLC, as amended and restated
|
|
|
|
|
3.59**
|
|
Certificate of Formation of CCO LP, LLC
|
|
|
|
|
3.60**
|
|
Limited Liability Company Agreement of CCO LP, LLC, as amended and restated
|
|
|
|
|
3.61**
|
|
Certificate of Formation of CCO NR Holdings, LLC
|
|
|
|
|
3.62**
|
|
Limited Liability Company Agreement of CCO NR Holdings, LLC, as amended and restated
|
|
|
|
|
3.63**
|
|
Certificate of Formation of CCO Purchasing, LLC
|
|
|
|
|
3.64**
|
|
Limited Liability Company Agreement of CCO Purchasing, LLC, as amended and restated
|
|
|
|
|
3.65**
|
|
Certificate of Formation of CCO SoCal I, LLC
|
|
|
|
|
3.66**
|
|
Limited Liability Company Agreement of CCO SoCal I, LLC, as amended and restated
|
|
|
|
|
3.67**
|
|
Certificate of Formation of CCO SoCal II, LLC
|
|
|
|
|
3.68**
|
|
Limited Liability Company Agreement of CCO SoCal II, LLC, as amended and restated
|
|
|
|
|
3.69**
|
|
Certificate of Formation of CCO SoCal Vehicles, LLC
|
|
|
|
|
3.70**
|
|
Limited Liability Company Agreement of CCO SoCal Vehicles, LLC, as amended and restated
|
|
|
|
|
3.71**
|
|
Certificate of Formation of CCO Transfers, LLC
|
|
|
|
|
3.72**
|
|
Limited Liability Company Agreement of CCO Transfers, LLC, as amended and restated
|
|
|
|
|
3.73**
|
|
Certificate of Formation of Charter Advanced Services (AL), LLC
|
|
|
|
|
3.74**
|
|
Limited Liability Company Agreement of Charter Advanced Services (AL), LLC, as amended and restated
|
|
|
|
|
3.75**
|
|
Certificate of Formation of Charter Advanced Services (CA), LLC
|
|
|
|
|
3.76**
|
|
Limited Liability Company Agreement of Charter Advanced Services (CA), LLC, as amended and restated
|
|
|
|
|
3.77**
|
|
Certificate of Formation of Charter Advanced Services (CO), LLC
|
|
|
|
|
3.78**
|
|
Limited Liability Company Agreement of Charter Advanced Services (CO), LLC, as amended and restated
|
|
|
|
|
3.79**
|
|
Certificate of Formation of Charter Advanced Services (CT), LLC
|
|
|
|
|
3.80**
|
|
Limited Liability Company Agreement of Charter Advanced Services (CT), LLC, as amended and restated
|
|
|
|
|
3.81**
|
|
Certificate of Formation of Charter Advanced Services (GA), LLC
|
|
|
|
|
3.82**
|
|
Limited Liability Company Agreement of Charter Advanced Services (GA), LLC, as amended and restated
|
|
|
|
|
3.83**
|
|
Certificate of Formation of Charter Advanced Services (IL), LLC
|
|
|
|
|
3.84**
|
|
Limited Liability Company Agreement of Charter Advanced Services (IL), LLC, as amended and restated
|
|
|
|
|
3.85**
|
|
Certificate of Formation of Charter Advanced Services (IN), LLC
|
E-3
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.86**
|
|
Limited Liability Company Agreement of Charter Advanced Services (IN), LLC, as amended and restated
|
|
|
|
|
3.87**
|
|
Certificate of Formation of Charter Advanced Services (KY), LLC
|
|
|
|
|
3.88**
|
|
Limited Liability Company Agreement of Charter Advanced Services (KY), LLC, as amended and restated
|
|
|
|
|
3.89**
|
|
Certificate of Formation of Charter Advanced Services (LA), LLC
|
|
|
|
|
3.90**
|
|
Limited Liability Company Agreement of Charter Advanced Services (LA), LLC, as amended and restated
|
|
|
|
|
3.91**
|
|
Certificate of Formation of Charter Advanced Services (MA), LLC
|
|
|
|
|
3.92**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MA), LLC, as amended and restated
|
|
|
|
|
3.93**
|
|
Certificate of Formation of Charter Advanced Services (MD), LLC
|
|
|
|
|
3.94**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MD), LLC, as amended and restated
|
|
|
|
|
3.95**
|
|
Certificate of Formation of Charter Advanced Services (MI), LLC
|
|
|
|
|
3.96**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MI), LLC, as amended and restated
|
|
|
|
|
3.97**
|
|
Certificate of Formation of Charter Advanced Services (MN), LLC
|
|
|
|
|
3.98**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MN), LLC, as amended and restated
|
|
|
|
|
3.99**
|
|
Certificate of Formation of Charter Advanced Services (MO), LLC
|
|
|
|
|
3.100**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MO), LLC, as amended and restated
|
|
|
|
|
3.101**
|
|
Certificate of Formation of Charter Advanced Services (MS), LLC
|
|
|
|
|
3.102**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MS), LLC, as amended and restated
|
|
|
|
|
3.103**
|
|
Certificate of Formation of Charter Advanced Services (MT), LLC
|
|
|
|
|
3.104**
|
|
Limited Liability Company Agreement of Charter Advanced Services (MT), LLC, as amended and restated
|
|
|
|
|
3.105**
|
|
Certificate of Formation of Charter Advanced Services (NC), LLC
|
|
|
|
|
3.106**
|
|
Limited Liability Company Agreement of Charter Advanced Services (NC), LLC, as amended and restated
|
|
|
|
|
3.107**
|
|
Certificate of Formation of Charter Advanced Services (NE), LLC
|
|
|
|
|
3.108**
|
|
Limited Liability Company Agreement of Charter Advanced Services (NE), LLC, as amended and restated
|
|
|
|
|
3.109**
|
|
Certificate of Formation of Charter Advanced Services (NH), LLC
|
|
|
|
|
3.110**
|
|
Limited Liability Company Agreement of Charter Advanced Services (NH), LLC, as amended and restated
|
E-4
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.111**
|
|
Certificate of Formation of Charter Advanced Services (NV), LLC
|
|
|
|
|
3.112**
|
|
Limited Liability Company Agreement of Charter Advanced Services (NV), LLC, as amended and restated
|
|
|
|
|
3.113**
|
|
Certificate of Formation of Charter Advanced Services (NY), LLC
|
|
|
|
|
3.114**
|
|
Limited Liability Company Agreement of Charter Advanced Services (NY), LLC, as amended and restated
|
|
|
|
|
3.115**
|
|
Certificate of Formation of Charter Advanced Services (OH), LLC
|
|
|
|
|
3.116**
|
|
Limited Liability Company Agreement of Charter Advanced Services (OH), LLC, as amended and restated
|
|
|
|
|
3.117**
|
|
Certificate of Formation of Charter Advanced Services (OR), LLC
|
|
|
|
|
3.118**
|
|
Limited Liability Company Agreement of Charter Advanced Services (OR), LLC, as amended and restated
|
|
|
|
|
3.119**
|
|
Certificate of Formation of Charter Advanced Services (PA), LLC
|
|
|
|
|
3.120**
|
|
Limited Liability Company Agreement of Charter Advanced Services (PA), LLC, as amended and restated
|
|
|
|
|
3.121**
|
|
Certificate of Formation of Charter Advanced Services (SC), LLC
|
|
|
|
|
3.122**
|
|
Limited Liability Company Agreement of Charter Advanced Services (SC), LLC, as amended and restated
|
|
|
|
|
3.123**
|
|
Certificate of Formation of Charter Advanced Services (TN), LLC
|
|
|
|
|
3.124**
|
|
Limited Liability Company Agreement of Charter Advanced Services (TN), LLC, as amended and restated
|
|
|
|
|
3.125**
|
|
Certificate of Formation of Charter Advanced Services (TX), LLC
|
|
|
|
|
3.126**
|
|
Limited Liability Company Agreement of Charter Advanced Services (TX), LLC, as amended and restated
|
|
|
|
|
3.127**
|
|
Certificate of Formation of Charter Advanced Services (UT), LLC
|
|
|
|
|
3.128**
|
|
Limited Liability Company Agreement of Charter Advanced Services (UT), LLC, as amended and restated
|
|
|
|
|
3.129**
|
|
Certificate of Formation of Charter Advanced Services (VA), LLC
|
|
|
|
|
3.130**
|
|
Limited Liability Company Agreement of Charter Advanced Services (VA), LLC, as amended and restated
|
|
|
|
|
3.131**
|
|
Certificate of Formation of Charter Advanced Services (VT), LLC
|
|
|
|
|
3.132**
|
|
Limited Liability Company Agreement of Charter Advanced Services (VT), LLC, as amended and restated
|
|
|
|
|
3.133**
|
|
Certificate of Formation of Charter Advanced Services (WA), LLC
|
|
|
|
|
3.134**
|
|
Limited Liability Company Agreement of Charter Advanced Services (WA), LLC, as amended and restated
|
|
|
|
|
3.135**
|
|
Certificate of Formation of Charter Advanced Services (WI), LLC
|
|
|
|
|
3.136**
|
|
Limited Liability Company Agreement of Charter Advanced Services (WI), LLC, as amended and restated
|
E-5
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.137**
|
|
Certificate of Formation of Charter Advanced Services (WV), LLC
|
|
|
|
|
3.138**
|
|
Limited Liability Company Agreement of Charter Advanced Services (WV), LLC, as amended and restated
|
|
|
|
|
3.139**
|
|
Certificate of Formation of Charter Advanced Services (WY), LLC
|
|
|
|
|
3.140**
|
|
Limited Liability Company Agreement of Charter Advanced Services (WY), LLC, as amended and restated
|
|
|
|
|
3.141**
|
|
Certificate of Formation of Charter Advanced Services VIII (MI), LLC
|
|
|
|
|
3.142**
|
|
Limited Liability Company Agreement of Charter Advanced Services VIII (MI), LLC, as amended and restated
|
|
|
|
|
3.143**
|
|
Certificate of Formation of Charter Advanced Services VIII (MN), LLC
|
|
|
|
|
3.144**
|
|
Limited Liability Company Agreement of Charter Advanced Services VIII (MN), LLC, as amended and restated
|
|
|
|
|
3.145**
|
|
Certificate of Formation of Charter Advanced Services VIII (WI), LLC
|
|
|
|
|
3.146**
|
|
Limited Liability Company Agreement of Charter Advanced Services VIII (WI), LLC, as amended and restated
|
|
|
|
|
3.147**
|
|
Certificate of Formation of Charter Advertising of Saint Louis, LLC
|
|
|
|
|
3.148**
|
|
Limited Liability Company Agreement of Charter Advertising of Saint Louis, LLC, as amended and restated
|
|
|
|
|
3.149**
|
|
Certificate of Formation of Charter Cable Operating Company, LLC
|
|
|
|
|
3.150**
|
|
Limited Liability Company Agreement of Charter Cable Operating Company, LLC, as amended and restated
|
|
|
|
|
3.151**
|
|
Certificate of Formation of Charter Cable Partners, LLC
|
|
|
|
|
3.152**
|
|
Limited Liability Company Agreement of Charter Cable Partners, LLC, as amended and restated
|
|
|
|
|
3.153**
|
|
Certificate of Formation of Charter Communications Entertainment I, LLC
|
|
|
|
|
3.154**
|
|
Limited Liability Company Agreement of Charter Communications Entertainment I, LLC, as amended and restated
|
|
|
|
|
3.155**
|
|
Certificate of Formation of Charter Communications Entertainment II, LLC
|
|
|
|
|
3.156**
|
|
Limited Liability Company Agreement of Charter Communications Entertainment II, LLC, as amended and restated
|
|
|
|
|
3.157**
|
|
Certificate of Formation of Charter Communications Entertainment, LLC
|
|
|
|
|
3.158**
|
|
Limited Liability Company Agreement of Charter Communications Entertainment, LLC, as amended and restated
|
|
|
|
|
3.159**
|
|
Certificate of Formation of Charter Communications of California, LLC
|
|
|
|
|
3.160**
|
|
Limited Liability Company Agreement of Charter Communications of California, LLC, as amended and restated
|
|
|
|
|
3.161**
|
|
Certificate of Formation of Charter Communications Properties LLC
|
|
|
|
|
3.162**
|
|
Limited Liability Company Agreement of Charter Communications Properties LLC, as amended and restated
|
|
|
|
|
3.163**
|
|
Certificate of Formation of Charter Communications Ventures, LLC
|
E-6
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.164**
|
|
Limited Liability Company Agreement of Charter Communications Ventures, LLC, as amended and restated
|
|
|
|
|
3.165**
|
|
Certificate of Formation of Charter Communications VI, L.L.C.
|
|
|
|
|
3.166**
|
|
Limited Liability Company Agreement of Charter Communications VI, L.L.C., as amended and restated
|
|
|
|
|
3.167**
|
|
Certificate of Formation of Charter Communications VII, LLC
|
|
|
|
|
3.168**
|
|
Limited Liability Company Agreement of Charter Communications VII, LLC, as amended and restated
|
|
|
|
|
3.169**
|
|
Certificate of Formation of Charter Communications, LLC
|
|
|
|
|
3.170**
|
|
Limited Liability Company Agreement of Charter Communications, LLC, as amended and restated
|
|
|
|
|
3.171**
|
|
Certificate of Formation of Charter Distribution, LLC
|
|
|
|
|
3.172**
|
|
Limited Liability Company Agreement of Charter Distribution, LLC, as amended and restated
|
|
|
|
|
3.173**
|
|
Certificate of Formation of Charter Fiberlink – Alabama, LLC
|
|
|
|
|
3.174**
|
|
Limited Liability Company Agreement of Charter Fiberlink - Alabama, LLC, as amended and restated
|
|
|
|
|
3.175**
|
|
Certificate of Formation of Charter Fiberlink – Georgia, LLC
|
|
|
|
|
3.176**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Georgia, LLC, as amended and restated
|
|
|
|
|
3.177**
|
|
Certificate of Formation of Charter Fiberlink - Illinois, LLC
|
|
|
|
|
3.178**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Illinois, LLC, as amended and restated
|
|
|
|
|
3.179**
|
|
Certificate of Formation of Charter Fiberlink – Maryland II, LLC
|
|
|
|
|
3.180**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Maryland II, LLC, as amended and restated
|
|
|
|
|
3.181**
|
|
Certificate of Formation of Charter Fiberlink – Michigan, LLC
|
|
|
|
|
3.182**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Michigan, LLC, as amended and restated
|
|
|
|
|
3.183**
|
|
Certificate of Formation of Charter Fiberlink – Missouri, LLC
|
|
|
|
|
3.184**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Missouri, LLC, as amended and restated
|
|
|
|
|
3.185**
|
|
Certificate of Formation of Charter Fiberlink – Nebraska, LLC
|
|
|
|
|
3.186**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Nebraska, LLC, as amended and restated
|
|
|
|
|
3.187**
|
|
Certificate of Formation of Charter Fiberlink – Tennessee, LLC
|
|
|
|
|
3.188**
|
|
Limited Liability Company Agreement of Charter Fiberlink – Tennessee, LLC, as amended and restated
|
|
|
|
|
3.189**
|
|
Certificate of Formation of Charter Fiberlink AR-CCVII, LLC
|
|
|
|
|
3.190**
|
|
Limited Liability Company Agreement of Charter Fiberlink AR-CCVII, LLC, as amended and restated
|
E-7
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.191**
|
|
Certificate of Formation of Charter Fiberlink CA-CCO, LLC
|
|
|
|
|
3.192**
|
|
Limited Liability Company Agreement of Charter Fiberlink CA-CCO, LLC, as amended and restated
|
|
|
|
|
3.193**
|
|
Certificate of Formation of Charter Fiberlink CC VIII, LLC
|
|
|
|
|
3.194**
|
|
Limited Liability Company Agreement of Charter Fiberlink CC VIII, LLC, as amended and restated
|
|
|
|
|
3.195**
|
|
Certificate of Formation of Charter Fiberlink CCO, LLC
|
|
|
|
|
3.196**
|
|
Limited Liability Company Agreement of Charter Fiberlink CCO, LLC, as amended and restated
|
|
|
|
|
3.197**
|
|
Certificate of Formation of Charter Fiberlink CT-CCO, LLC
|
|
|
|
|
3.198**
|
|
Limited Liability Company Agreement of Charter Fiberlink CT-CCO, LLC, as amended and restated
|
|
|
|
|
3.199**
|
|
Certificate of Formation of Charter Fiberlink LA-CCO, LLC
|
|
|
|
|
3.200**
|
|
Limited Liability Company Agreement of Charter Fiberlink LA-CCO, LLC, as amended and restated
|
|
|
|
|
3.201**
|
|
Certificate of Formation of Charter Fiberlink MA-CCO, LLC
|
|
|
|
|
3.202**
|
|
Limited Liability Company Agreement of Charter Fiberlink MA-CCO, LLC, as amended and restated
|
|
|
|
|
3.203**
|
|
Certificate of Formation of Charter Fiberlink MS-CCVI, LLC
|
|
|
|
|
3.204**
|
|
Limited Liability Company Agreement of Charter Fiberlink MS-CCVI, LLC, as amended and restated
|
|
|
|
|
3.205**
|
|
Certificate of Formation of Charter Fiberlink NC-CCO, LLC
|
|
|
|
|
3.206**
|
|
Limited Liability Company Agreement of Charter Fiberlink NC-CCO, LLC, as amended and restated
|
|
|
|
|
3.207**
|
|
Certificate of Formation of Charter Fiberlink NH-CCO, LLC
|
|
|
|
|
3.208**
|
|
Limited Liability Company Agreement of Charter Fiberlink NH-CCO, LLC, as amended and restated
|
|
|
|
|
3.209**
|
|
Certificate of Formation of Charter Fiberlink NV-CCVII, LLC
|
|
|
|
|
3.210**
|
|
Limited Liability Company Agreement of Charter Fiberlink NV-CCVII, LLC, as amended and restated
|
|
|
|
|
3.211**
|
|
Certificate of Formation of Charter Fiberlink NY-CCO, LLC
|
|
|
|
|
3.212**
|
|
Limited Liability Company Agreement of Charter Fiberlink NY-CCO, LLC, as amended and restated
|
|
|
|
|
3.213**
|
|
Certificate of Formation of Charter Fiberlink OH-CCO, LLC
|
|
|
|
|
3.214**
|
|
Limited Liability Company Agreement of Charter Fiberlink OH-CCO, LLC, as amended and restated
|
|
|
|
|
3.215**
|
|
Certificate of Formation of Charter Fiberlink OR-CCVII, LLC
|
|
|
|
|
3.216**
|
|
Limited Liability Company Agreement of Charter Fiberlink OR-CCVII, LLC, as amended and restated
|
|
|
|
|
3.217**
|
|
Certificate of Formation of Charter Fiberlink – Pennsylvania, LLC
|
|
|
|
|
3.218**
|
|
Limited Liability Company Agreement of Charter Fiberlink- Pennsylvania, LLC, as amended and restated
|
|
|
|
|
3.219**
|
|
Certificate of Formation of Charter Fiberlink SC-CCO, LLC
|
|
|
|
|
3.220**
|
|
Limited Liability Company Agreement of Charter Fiberlink SC-CCO, LLC, as amended and restated
|
|
|
|
|
3.221**
|
|
Certificate of Formation of Charter Fiberlink TX-CCO, LLC
|
E-8
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.222**
|
|
Limited Liability Company Agreement of Charter Fiberlink TX-CCO, LLC, as amended and restated
|
|
|
|
|
3.223**
|
|
Certificate of Formation of Charter Fiberlink VA-CCO, LLC
|
|
|
|
|
3.224**
|
|
Limited Liability Company Agreement of Charter Fiberlink VA-CCO, LLC, as amended and restated
|
|
|
|
|
3.225**
|
|
Certificate of Formation of Charter Fiberlink VT-CCO, LLC
|
|
|
|
|
3.226**
|
|
Limited Liability Company Agreement of Charter Fiberlink VT-CCO, LLC, as amended and restated
|
|
|
|
|
3.227**
|
|
Certificate of Formation of Charter Fiberlink WA-CCVII, LLC
|
|
|
|
|
3.228**
|
|
Limited Liability Company Agreement of Charter Fiberlink WA-CCVII, LLC, as amended and restated
|
|
|
|
|
3.229**
|
|
Certificate of Formation of Charter Helicon, LLC
|
|
|
|
|
3.230**
|
|
Limited Liability Company Agreement of Charter Helicon, LLC, as amended and restated
|
|
|
|
|
3.231**
|
|
Certificate of Formation of Charter Home Security, LLC
|
|
|
|
|
3.232**
|
|
Limited Liability Company Agreement of Charter Home Security, LLC, as amended and restated
|
|
|
|
|
3.233**
|
|
Certificate of Formation of Charter Leasing Holding Company, LLC
|
|
|
|
|
3.234**
|
|
Limited Liability Company Agreement of Charter Leasing Holding Company, LLC, as amended and restated
|
|
|
|
|
3.235**
|
|
Certificate of Formation of Charter Leasing of Wisconsin, LLC
|
|
|
|
|
3.236**
|
|
Limited Liability Company Agreement of Charter Leasing of Wisconsin, LLC, as amended and restated
|
|
|
|
|
3.237**
|
|
Certificate of Formation of Charter RMG, LLC
|
|
|
|
|
3.238**
|
|
Limited Liability Company Agreement of Charter RMG, LLC, as amended and restated
|
|
|
|
|
3.239**
|
|
Certificate of Formation of Charter Stores FCN, LLC
|
|
|
|
|
3.240**
|
|
Limited Liability Company Agreement of Charter Stores FCN, LLC, as amended and restated
|
|
|
|
|
3.241**
|
|
Certificate of Formation of Charter Video Electronics, LLC
|
|
|
|
|
3.242**
|
|
Limited Liability Company Agreement of Charter Video Electronics, LLC, as amended and restated
|
|
|
|
|
3.243**
|
|
Certificate of Formation of Falcon Cable Communications, LLC
|
|
|
|
|
3.244**
|
|
Limited Liability Company Agreement of Falcon Cable Communications, LLC, as amended and restated
|
|
|
|
|
3.245**
|
|
Certificate of Limited Partnership of Falcon Cable Media, a California Limited Partnership
|
|
|
|
|
3.246**
|
|
Limited Partnership Agreement of Falcon Cable Media, a California Limited Partnership, as amended and restated
|
|
|
|
|
3.247**
|
|
Certificate of Limited Partnership of Falcon Cable Systems Company II, L.P.
|
|
|
|
|
3.248**
|
|
Limited Partnership Agreement of Falcon Cable Systems Company II, L.P., as amended and restated
|
|
|
|
|
3.249**
|
|
Certificate of Limited Partnership of Falcon Cablevision, a California Limited Partnership
|
|
|
|
|
3.250**
|
|
Limited Partnership Agreement of Falcon Cablevision, a California Limited Partnership, as amended and restated
|
E-9
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.251
|
|
Certificate of Limited Partnership of Falcon Community Cable, L.P.
|
|
|
|
|
3.252
|
|
Limited Partnership Agreement of Falcon Community Cable, L.P., as amended and restated
|
|
|
|
|
3.253
|
|
Certificate of Limited Partnership of Falcon Community Ventures I Limited Partnership
|
|
|
|
|
3.254
|
|
Limited Partnership Agreement of Falcon Community Ventures I Limited Partnership, as amended and restated
|
|
|
|
|
3.255
|
|
Certificate of Formation of Falcon First Cable of the Southeast, LLC
|
|
|
|
|
3.256
|
|
Limited Liability Company Agreement of Falcon First Cable of the Southeast, LLC, as amended and restated
|
|
|
|
|
3.257
|
|
Certificate of Formation of Falcon First, LLC
|
|
|
|
|
3.258
|
|
Limited Liability Company Agreement of Falcon First, LLC, as amended and restated
|
|
|
|
|
3.259
|
|
Certificate of Limited Partnership of Falcon Telecable, a California Limited Partnership
|
|
|
|
|
3.260
|
|
Limited Partnership Agreement of Falcon Telecable, a California Limited Partnership, as amended and restated
|
|
|
|
|
3.261
|
|
Certificate of Limited Partnership of Falcon Video Communications, L.P.
|
|
|
|
|
3.262
|
|
Limited Partnership Agreement of Falcon Video Communications, L.P., as amended and restated
|
|
|
|
|
3.263
|
|
Certificate of Limited Partnership of Helicon Partners I, L.P.
|
|
|
|
|
3.264
|
|
Limited Partnership Agreement of Helicon Partners I, L.P., as amended and restated
|
|
|
|
|
3.265
|
|
Certificate of Formation of Hometown T.V., LLC
|
|
|
|
|
3.266
|
|
Limited Liability Company Agreement of Hometown T.V., LLC, as amended and restated
|
|
|
|
|
3.267
|
|
Certificate of Formation of HPI Acquisition Co. LLC
|
|
|
|
|
3.268
|
|
Limited Liability Company Agreement of HPI Acquisition Co. LLC, as amended and restated
|
|
|
|
|
3.269
|
|
Certificate of Formation of Interlink Communications Partners, LLC
|
|
|
|
|
3.270
|
|
Limited Liability Company Agreement of Interlink Communications Partners, LLC, as amended and restated
|
|
|
|
|
3.271
|
|
Certificate of Formation of Long Beach, LLC
|
|
|
|
|
3.272
|
|
Limited Liability Company Agreement of Long Beach, LLC, as amended and restated
|
|
|
|
|
3.273
|
|
Certificate of Formation of Marcus Cable Associates, L.L.C.
|
|
|
|
|
3.274
|
|
Limited Liability Company Agreement of Marcus Cable Associates, L.L.C., as amended and restated
|
|
|
|
|
3.275
|
|
Certificate of Formation of Marcus Cable of Alabama, L.L.C.
|
|
|
|
|
3.276
|
|
Limited Liability Company Agreement of Marcus Cable of Alabama, L.L.C., as amended and restated
|
|
|
|
|
3.277
|
|
Certificate of Formation of Marcus Cable, LLC
|
|
|
|
|
3.278
|
|
Limited Liability Company Agreement of Marcus Cable, LLC, as amended and restated
|
|
|
|
|
3.279
|
|
Certificate of Formation of Midwest Cable Communications, LLC
|
|
|
|
|
3.280
|
|
Limited Liability Company Agreement of Midwest Cable Communications, LLC, as amended and restated
|
|
|
|
|
3.281
|
|
Certificate of Limited Partnership of Peachtree Cable TV, L.P.
|
E-10
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.282
|
|
Limited Partnership Agreement of Peachtree Cable TV, L.P., as amended and restated
|
|
|
|
|
3.283
|
|
Certificate of Formation of Peachtree Cable TV, LLC
|
|
|
|
|
3.284
|
|
Limited Liability Company Agreement of Peachtree Cable TV, LLC, as amended and restated
|
|
|
|
|
3.285
|
|
Certificate of Formation of Phone Transfers (AL), LLC
|
|
|
|
|
3.286
|
|
Limited Liability Company Agreement of Phone Transfers (AL), LLC, as amended and restated
|
|
|
|
|
3.287
|
|
Certificate of Formation of Phone Transfers (CA), LLC
|
|
|
|
|
3.288
|
|
Limited Liability Company Agreement of Phone Transfers (CA), LLC, as amended and restated
|
|
|
|
|
3.289
|
|
Certificate of Formation of Phone Transfers (GA), LLC
|
|
|
|
|
3.290
|
|
Limited Liability Company Agreement of Phone Transfers (GA), LLC, as amended and restated
|
|
|
|
|
3.291
|
|
Certificate of Formation of Phone Transfers (NC), LLC
|
|
|
|
|
3.292
|
|
Limited Liability Company Agreement of Phone Transfers (NC), LLC, as amended and restated
|
|
|
|
|
3.293
|
|
Certificate of Formation of Phone Transfers (TN), LLC
|
|
|
|
|
3.294
|
|
Limited Liability Company Agreement of Phone Transfers (TN), LLC, as amended and restated
|
|
|
|
|
3.295
|
|
Certificate of Formation of Phone Transfers (VA), LLC
|
|
|
|
|
3.296
|
|
Limited Liability Company Agreement of Phone Transfers (VA), LLC, as amended and restated
|
|
|
|
|
3.297
|
|
Certificate of Formation of Renaissance Media LLC
|
|
|
|
|
3.298
|
|
Limited Liability Company Agreement of Renaissance Media LLC, as amended and restated
|
|
|
|
|
3.299
|
|
Certificate of Formation of Rifkin Acquisition Partners, LLC
|
|
|
|
|
3.300
|
|
Limited Liability Company Agreement of Rifkin Acquisition Partners, LLC, as amended and restated
|
|
|
|
|
3.301
|
|
Certificate of Formation of Robin Media Group, LLC
|
|
|
|
|
3.302
|
|
Limited Liability Company Agreement of Robin Media Group, LLC, as amended and restated
|
|
|
|
|
3.303
|
|
Certificate of Formation of Scottsboro TV Cable, LLC
|
|
|
|
|
3.304
|
|
Limited Liability Company Agreement of Scottsboro TV Cable, LLC, as amended and restated
|
|
|
|
|
3.305
|
|
Certificate of Limited Partnership of The Helicon Group, L.P.
|
|
|
|
|
3.306
|
|
Limited Partnership Agreement of The Helicon Group, L.P., as amended and restated
|
|
|
|
|
3.307
|
|
Certificate of Formation of Vista Broadband Communications, LLC
|
|
|
|
|
3.308
|
|
Limited Liability Company Agreement of Vista Broadband Communications, LLC, as amended and restated
|
|
|
|
|
3.309
|
|
Certificate of Formation of VOIP Transfers (AL), LLC
|
|
|
|
|
3.310
|
|
Limited Liability Company Agreement of VOIP Transfers (AL), LLC, as amended and restated
|
|
|
|
|
3.311
|
|
Certificate of Formation of VOIP Transfers (CA), LLC
|
|
|
|
|
3.312
|
|
Limited Liability Company Agreement of VOIP Transfers (CA) LLC, as amended and restated
|
|
|
|
|
3.313
|
|
Certificate of Formation of VOIP Transfers (GA), LLC
|
|
|
|
|
3.314
|
|
Limited Liability Company Agreement of VOIP Transfers (GA), LLC, as amended and restated
|
|
|
|
|
3.315
|
|
Certificate of Formation of VOIP Transfers (NC), LLC
|
E-11
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.316
|
|
Limited Liability Company Agreement of VOIP Transfers (NC), LLC, as amended and restated
|
|
|
|
|
3.317
|
|
Certificate of Formation of VOIP Transfers (TN), LLC
|
|
|
|
|
3.318
|
|
Limited Liability Company Agreement of VOIP Transfers (TN), LLC, as amended and restated
|
|
|
|
|
3.319
|
|
Certificate of Formation of VOIP Transfers (VA), LLC
|
|
|
|
|
3.320
|
|
Limited Liability Company Agreement of VOIP Transfers (VA), LLC, as amended and restated
|
|
|
|
|
3.321
|
|
Certificate of Formation of AdCast North Carolina Cable Advertising, LLC
|
|
|
|
|
3.322
|
|
Limited Liability Company Agreement of AdCast North Carolina Cable Advertising, LLC, as amended and restated
|
|
|
|
|
3.323
|
|
Certificate of Formation of Alabanza LLC
|
|
|
|
|
3.324
|
|
Limited Liability Company Agreement of Alabanza LLC, as amended and restated
|
|
|
|
|
3.325
|
|
Certificate of Formation of America’s Job Exchange LLC
|
|
|
|
|
3.326
|
|
Limited Liability Company Agreement of America’s Job Exchange LLC, as amended and restated
|
|
|
|
|
3.327
|
|
Certificate of Formation of DukeNet Communications Holdings, LLC
|
|
|
|
|
3.328
|
|
Limited Liability Company Agreement of DukeNet Communications Holdings, LLC, as amended and restated
|
|
|
|
|
3.329
|
|
Certificate of Formation of DukeNet Communications, LLC
|
|
|
|
|
3.330
|
|
Limited Liability Company Agreement of DukeNet Communications, LLC, as amended and restated
|
|
|
|
|
3.331
|
|
Certificate of Formation of ICI Holdings, LLC
|
|
|
|
|
3.332
|
|
Limited Liability Company Agreement of ICI Holdings, LLC, as amended and restated
|
|
|
|
|
3.333
|
|
Certificate of Formation of Insight Blocker LLC
|
|
|
|
|
3.334
|
|
Limited Liability Company Agreement of Insight Blocker LLC, as amended and restated
|
|
|
|
|
3.335
|
|
Certificate of Formation of Insight Capital LLC
|
|
|
|
|
3.336
|
|
Limited Liability Company Agreement of Insight Capital LLC, as amended and restated
|
|
|
|
|
3.337
|
|
Certificate of Limited Partnership of Insight Communications Company, L.P.
|
|
|
|
|
3.338
|
|
Limited Partnership Agreement of Insight Communications Company, L.P., as amended and restated
|
|
|
|
|
3.339
|
|
Certificate of Formation of Insight Communications Midwest, LLC
|
|
|
|
|
3.340
|
|
Limited Liability Company Agreement of Insight Communications Midwest, LLC, as amended and restated
|
|
|
|
|
3.341
|
|
Certificate of Formation of Insight Communications of Central Ohio, LLC
|
|
|
|
|
3.342
|
|
Limited Liability Company Agreement of Insight Communications of Central Ohio, LLC, as amended and restated
|
|
|
|
|
3.343
|
|
Certificate of Limited Partnership of Insight Communications of Kentucky, L.P.
|
|
|
|
|
3.344
|
|
Limited Partnership Agreement of Insight Communications of Kentucky, L.P., as amended and restated
|
|
|
|
|
3.345
|
|
Certificate of Formation of Insight Interactive, LLC
|
|
|
|
|
3.346
|
|
Limited Liability Company Agreement of Insight Interactive, LLC, as amended and restated
|
E-12
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.347
|
|
Certificate of Formation of Insight Kentucky Capital, LLC
|
|
|
|
|
3.348
|
|
Limited Liability Company Agreement of Insight Kentucky Capital, LLC, as amended and restated
|
|
|
|
|
3.349
|
|
Certificate of Limited Partnership of Insight Kentucky Partners I, L.P.
|
|
|
|
|
3.350
|
|
Limited Partnership Agreement of Insight Kentucky Partners I, L.P., as amended and restated
|
|
|
|
|
3.351
|
|
Certificate of Limited Partnership of Insight Kentucky Partners II, L.P.
|
|
|
|
|
3.352
|
|
Limited Partnership Agreement of Insight Kentucky Partners II, L.P., as amended and restated
|
|
|
|
|
3.353
|
|
Certificate of Formation of Insight Midwest Holdings, LLC
|
|
|
|
|
3.354
|
|
Limited Liability Company Agreement of Insight Midwest Holdings, LLC, as amended and restated
|
|
|
|
|
3.355
|
|
Certificate of Limited Partnership of Insight Midwest, L.P.
|
|
|
|
|
3.356
|
|
Limited Partnership Agreement of Insight Midwest, L.P., as amended and restated
|
|
|
|
|
3.357
|
|
Certificate of Formation of Insight Phone of Indiana, LLC
|
|
|
|
|
3.358
|
|
Limited Liability Company Agreement of Insight Phone of Indiana, LLC, as amended and restated
|
|
|
|
|
3.359
|
|
Certificate of Formation of Insight Phone of Kentucky, LLC
|
|
|
|
|
3.360
|
|
Limited Liability Company Agreement of Insight Phone of Kentucky, LLC, as amended and restated
|
|
|
|
|
3.361
|
|
Certificate of Formation of Insight Phone of Ohio, LLC
|
|
|
|
|
3.362
|
|
Limited Liability Company Agreement of Insight Phone of Ohio, LLC, as amended and restated
|
|
|
|
|
3.363
|
|
Certificate of Formation of Interactive Cable Services, LLC
|
|
|
|
|
3.364
|
|
Limited Liability Company Agreement of Interactive Cable Services, LLC, as amended and restated
|
|
|
|
|
3.365
|
|
Certificate of Formation of Intrepid Acquisition LLC
|
|
|
|
|
3.366
|
|
Limited Liability Company Agreement of Intrepid Acquisition LLC, as amended and restated
|
|
|
|
|
3.367
|
|
Certificate of Formation of NaviSite LLC
|
|
|
|
|
3.368
|
|
Limited Liability Company Agreement of NaviSite LLC, as amended and restated
|
|
|
|
|
3.369
|
|
Certificate of Formation of New Wisconsin Procurement LLC
|
|
|
|
|
3.370
|
|
Limited Liability Company Agreement of New Wisconsin Procurement LLC, as amended and restated
|
|
|
|
|
3.371
|
|
Certificate of Formation of Oceanic Time Warner Cable LLC
|
|
|
|
|
3.372
|
|
Limited Liability Company Agreement of Oceanic Time Warner Cable LLC, as amended and restated
|
|
|
|
|
3.373
|
|
Certificate of Formation of Parity Assets LLC
|
|
|
|
|
3.374
|
|
Limited Liability Company Agreement of Parity Assets LLC, as amended and restated
|
|
|
|
|
3.375
|
|
Certificate of Formation of Time Warner Cable Business LLC
|
|
|
|
|
3.376
|
|
Limited Liability Company Agreement of Time Warner Cable Business LLC, as amended and restated
|
|
|
|
|
3.377
|
|
Certificate of Formation of Time Warner Cable Enterprises LLC
|
|
|
|
|
3.378
|
|
Limited Liability Company Agreement of Time Warner Cable Enterprises LLC, as amended and restated
|
|
|
|
|
3.379
|
|
Certificate of Formation of Time Warner Cable Information Services (Alabama), LLC
|
E-13
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.380
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Alabama), LLC, as amended and restated
|
|
|
|
|
3.381
|
|
Certificate of Formation of Time Warner Cable Information Services (Arizona), LLC
|
|
|
|
|
3.382
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Arizona), LLC, as amended and restated
|
|
|
|
|
3.383
|
|
Certificate of Formation of Time Warner Cable Information Services (California), LLC
|
|
|
|
|
3.384
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (California), LLC, as amended and restated
|
|
|
|
|
3.385
|
|
Certificate of Formation of Time Warner Cable Information Services (Colorado), LLC
|
|
|
|
|
3.386
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Colorado), LLC, as amended and restated
|
|
|
|
|
3.387
|
|
Certificate of Formation of Time Warner Cable Information Services (Hawaii), LLC
|
|
|
|
|
3.388
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Hawaii), LLC, as amended and restated
|
|
|
|
|
3.389
|
|
Certificate of Formation of Time Warner Cable Information Services (Idaho), LLC
|
|
|
|
|
3.390
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Idaho), LLC, as amended and restated
|
|
|
|
|
3.391
|
|
Certificate of Formation of Time Warner Cable Information Services (Illinois), LLC
|
|
|
|
|
3.392
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Illinois), LLC, as amended and restated
|
|
|
|
|
3.393
|
|
Certificate of Formation of Time Warner Cable Information Services (Indiana), LLC
|
|
|
|
|
3.394
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Indiana), LLC, as amended and restated
|
|
|
|
|
3.395
|
|
Certificate of Formation of Time Warner Cable Information Services (Kansas), LLC
|
|
|
|
|
3.396
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Kansas), LLC, as amended and restated
|
|
|
|
|
3.397
|
|
Certificate of Formation of Time Warner Cable Information Services (Kentucky), LLC
|
|
|
|
|
3.398
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Kentucky), LLC, as amended and restated
|
|
|
|
|
3.399
|
|
Certificate of Formation of Time Warner Cable Information Services (Maine), LLC
|
|
|
|
|
3.400
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Maine), LLC, as amended and restated
|
|
|
|
|
3.401
|
|
Certificate of Formation of Time Warner Cable Information Services (Massachusetts), LLC
|
|
|
|
|
3.402
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Massachusetts), LLC, as amended and restated
|
|
|
|
|
3.403
|
|
Certificate of Formation of Time Warner Cable Information Services (Michigan), LLC
|
|
|
|
|
3.404
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Michigan), LLC, as amended and restated
|
|
|
|
|
3.405
|
|
Certificate of Formation of Time Warner Cable Information Services (Missouri), LLC
|
E-14
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.406
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Missouri), LLC, as amended and restated
|
|
|
|
|
3.407
|
|
Certificate of Formation of Time Warner Cable Information Services (Nebraska), LLC
|
|
|
|
|
3.408
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Nebraska), LLC, as amended and restated
|
|
|
|
|
3.409
|
|
Certificate of Formation of Time Warner Cable Information Services (New Hampshire), LLC
|
|
|
|
|
3.410
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (New Hampshire), LLC, as amended and restated
|
|
|
|
|
3.411
|
|
Certificate of Formation of Time Warner Cable Information Services (New Jersey), LLC
|
|
|
|
|
3.412
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (New Jersey), LLC, as amended and restated
|
|
|
|
|
3.413
|
|
Certificate of Formation of Time Warner Cable Information Services (New Mexico), LLC
|
|
|
|
|
3.414
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (New Mexico), LLC, as amended and restated
|
|
|
|
|
3.415
|
|
Certificate of Formation of Time Warner Cable Information Services (New York), LLC
|
|
|
|
|
3.416
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (New York), LLC, as amended and restated
|
|
|
|
|
3.417
|
|
Certificate of Formation of Time Warner Cable Information Services (North Carolina), LLC
|
|
|
|
|
3.418
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (North Carolina), LLC, as amended and restated
|
|
|
|
|
3.419
|
|
Certificate of Formation of Time Warner Cable Information Services (Ohio), LLC
|
|
|
|
|
3.420
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Ohio), LLC, as amended and restated
|
|
|
|
|
3.421
|
|
Certificate of Formation of Time Warner Cable Information Services (Pennsylvania), LLC
|
|
|
|
|
3.422
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Pennsylvania), LLC, as amended and restated
|
|
|
|
|
3.423
|
|
Certificate of Formation of Time Warner Cable Information Services (South Carolina), LLC
|
|
|
|
|
3.424
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (South Carolina), LLC, as amended and restated
|
|
|
|
|
3.425
|
|
Certificate of Formation of Time Warner Cable Information Services (Tennessee), LLC
|
|
|
|
|
3.426
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Tennessee), LLC, as amended and restated
|
|
|
|
|
3.427
|
|
Certificate of Formation of Time Warner Cable Information Services (Texas), LLC
|
|
|
|
|
3.428
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Texas), LLC, as amended and restated
|
|
|
|
|
3.429
|
|
Certificate of Formation of Time Warner Cable Information Services (Virginia), LLC
|
|
|
|
|
3.430
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Virginia), LLC, as amended and restated
|
|
|
|
|
3.431
|
|
Certificate of Formation of Time Warner Cable Information Services (Washington), LLC
|
E-15
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.432
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Washington), LLC, as amended and restated
|
|
|
|
|
3.433
|
|
Certificate of Formation of Time Warner Cable Information Services (West Virginia), LLC
|
|
|
|
|
3.434
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (West Virginia), LLC, as amended and restated
|
|
|
|
|
3.435
|
|
Certificate of Formation of Time Warner Cable Information Services (Wisconsin), LLC
|
|
|
|
|
3.436
|
|
Limited Liability Company Agreement of Time Warner Cable Information Services (Wisconsin), LLC, as amended and restated
|
|
|
|
|
3.437
|
|
Certificate of Formation of Time Warner Cable International LLC
|
|
|
|
|
3.438
|
|
Limited Liability Company Agreement of Time Warner Cable International LLC, as amended and restated
|
|
|
|
|
3.439
|
|
Certificate of Formation of Time Warner Cable Internet Holdings III LLC
|
|
|
|
|
3.440
|
|
Limited Liability Company Agreement of Time Warner Cable Internet Holdings III LLC, as amended and restated
|
|
|
|
|
3.441
|
|
Certificate of Formation of Time Warner Cable Internet Holdings LLC
|
|
|
|
|
3.442
|
|
Limited Liability Company Agreement of Time Warner Cable Internet Holdings LLC, as amended and restated
|
|
|
|
|
3.443
|
|
Certificate of Formation of Time Warner Cable Internet LLC
|
|
|
|
|
3.444
|
|
Limited Liability Company Agreement of Time Warner Cable Internet LLC, as amended and restated
|
|
|
|
|
3.445
|
|
Certificate of Formation of Time Warner Cable Media LLC
|
|
|
|
|
3.446
|
|
Limited Liability Company Agreement of Time Warner Cable Media LLC, as amended and restated
|
|
|
|
|
3.447
|
|
Certificate of Formation of Time Warner Cable Midwest LLC
|
|
|
|
|
3.448
|
|
Limited Liability Company Agreement of Time Warner Cable Midwest LLC, as amended and restated
|
|
|
|
|
3.449
|
|
Certificate of Formation of Time Warner Cable New York City LLC
|
|
|
|
|
3.450
|
|
Limited Liability Company Agreement of Time Warner Cable New York City LLC, as amended and restated
|
|
|
|
|
3.451
|
|
Certificate of Formation of Time Warner Cable Northeast LLC
|
|
|
|
|
3.452
|
|
Limited Liability Company Agreement of Time Warner Cable Northeast LLC, as amended and restated
|
|
|
|
|
3.453
|
|
Certificate of Formation of Time Warner Cable Pacific West LLC
|
|
|
|
|
3.454
|
|
Limited Liability Company Agreement of Time Warner Cable Pacific West LLC, as amended and restated
|
|
|
|
|
3.455
|
|
Certificate of Formation of Time Warner Cable Services LLC
|
|
|
|
|
3.456
|
|
Limited Liability Company Agreement of Time Warner Cable Services LLC, as amended and restated
|
|
|
|
|
3.457
|
|
Certificate of Formation of Time Warner Cable Southeast LLC
|
|
|
|
|
3.458
|
|
Limited Liability Company Agreement of Time Warner Cable Southeast LLC, as amended and restated
|
E-16
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.459
|
|
Certificate of Formation of Time Warner Cable Sports LLC
|
|
|
|
|
3.460
|
|
Limited Liability Company Agreement of Time Warner Cable Sports LLC, as amended and restated
|
|
|
|
|
3.461
|
|
Certificate of Formation of Time Warner Cable Texas LLC
|
|
|
|
|
3.462
|
|
Limited Liability Company Agreement of Time Warner Cable Texas LLC, as amended and restated
|
|
|
|
|
3.463
|
|
Certificate of Formation of TWC Administration LLC
|
|
|
|
|
3.464
|
|
Limited Liability Company Agreement of TWC Administration LLC, as amended and restated
|
|
|
|
|
3.465
|
|
Certificate of Formation of TWC Communications, LLC
|
|
|
|
|
3.466
|
|
Limited Liability Company Agreement of TWC Communications, LLC, as amended and restated
|
|
|
|
|
3.467
|
|
Certificate of Formation of TWC Digital Phone LLC
|
|
|
|
|
3.468
|
|
Limited Liability Company Agreement of TWC Digital Phone LLC, as amended and restated
|
|
|
|
|
3.469
|
|
Certificate of Formation of TWC Media Blocker LLC
|
|
|
|
|
3.470
|
|
Limited Liability Company Agreement of TWC Media Blocker LLC, as amended and restated
|
|
|
|
|
3.471
|
|
Certificate of Formation of Time Warner Cable, LLC
|
|
|
|
|
3.472
|
|
Limited Liability Company Agreement of Time Warner Cable, LLC, as amended and restated
|
|
|
|
|
3.473
|
|
Certificate of Formation of TWC News and Local Programming Holdco LLC
|
|
|
|
|
3.474
|
|
Limited Liability Company Agreement of TWC News and Local Programming Holdco LLC, as amended and restated
|
|
|
|
|
3.475
|
|
Certificate of Formation of TWC News and Local Programming LLC
|
|
|
|
|
3.476
|
|
Limited Liability Company Agreement of TWC News and Local Programming LLC, as amended and restated
|
|
|
|
|
3.477
|
|
Certificate of Formation of TWC Regional Sports Network I LLC
|
|
|
|
|
3.478
|
|
Limited Liability Company Agreement of TWC Regional Sports Network I LLC, as amended and restated
|
|
|
|
|
3.479
|
|
Certificate of Formation of TWC Security LLC
|
|
|
|
|
3.480
|
|
Limited Liability Company Agreement of TWC Security LLC, as amended and restated
|
|
|
|
|
3.481
|
|
Certificate of Formation of TWC SEE Holdco LLC
|
|
|
|
|
3.482
|
|
Limited Liability Company Agreement of TWC SEE Holdco LLC, as amended and restated
|
|
|
|
|
3.483
|
|
Certificate of Formation of TWC Wireless LLC
|
|
|
|
|
3.484
|
|
Limited Liability Company Agreement of TWC Wireless LLC, as amended and restated
|
|
|
|
|
3.485
|
|
Certificate of Formation of TWC/Charter Dallas Cable Advertising, LLC
|
|
|
|
|
3.486
|
|
Limited Liability Company Agreement of TWC/Charter Dallas Cable Advertising, LLC, as amended and restated
|
|
|
|
|
3.487
|
|
Certificate of Formation of TWC/Charter Green Bay Cable Advertising, LLC
|
|
|
|
|
3.488
|
|
Limited Liability Company Agreement of TWC/Charter Green Bay Cable Advertising, LLC, as amended and restated
|
E-17
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
3.489
|
|
Certificate of Formation of TWC/Charter Los Angeles Cable Advertising, LLC
|
|
|
|
|
3.490
|
|
Limited Liability Company Agreement of TWC/Charter Los Angeles Cable Advertising, LLC, as amended and restated
|
|
|
|
|
3.491
|
|
Certificate of Formation of TWCIS Holdco LLC
|
|
|
|
|
3.492
|
|
Limited Liability Company Agreement of TWCIS Holdco LLC, as amended and restated
|
|
|
|
|
3.493
|
|
Certificate of Formation of Wisconsin Procurement Holdco LLC
|
|
|
|
|
3.494
|
|
Limited Liability Company Agreement of Wisconsin Procurement Holdco LLC, as amended and restated
|
|
|
|
|
3.495
|
|
Certificate of Formation of BHN Home Security Services, LLC
|
|
|
|
|
3.496
|
|
Limited Liability Company Agreement of BHN Home Security Services, LLC, as amended and restated
|
|
|
|
|
3.497
|
|
Certificate of Formation of BHN Spectrum Investments, LLC
|
|
|
|
|
3.498
|
|
Limited Liability Company Agreement of BHN Spectrum Investments, LLC, as amended and restated
|
|
|
|
|
3.499
|
|
Certificate of Formation of Bright House Networks, LLC
|
|
|
|
|
3.500
|
|
Limited Liability Company Agreement of Bright House Networks, LLC, as amended and restated
|
|
|
|
|
3.501
|
|
Certificate of Formation of Bright House Networks Information Services (Alabama), LLC
|
|
|
|
|
3.502
|
|
Limited Liability Company Agreement of Bright House Networks Information Services (Alabama), LLC, as amended and restated
|
|
|
|
|
3.503
|
|
Certificate of Formation of Bright House Networks Information Services (California), LLC
|
|
|
|
|
3.504
|
|
Limited Liability Company Agreement of Bright House Networks Information Services (California), LLC, as amended and restated
|
|
|
|
|
3.505
|
|
Certificate of Formation of Bright House Networks Information Services (Florida), LLC
|
|
|
|
|
3.506
|
|
Limited Liability Company Agreement of Bright House Networks Information Services (Florida), LLC, as amended and restated
|
|
|
|
|
3.507
|
|
Certificate of Formation of Bright House Networks Information Services (Indiana), LLC
|
|
|
|
|
3.508
|
|
Limited Liability Company Agreement of Bright House Networks Information Services (Indiana), LLC, as amended and restated
|
|
|
|
|
3.509
|
|
Certificate of Formation of Bright House Networks Information Services (Michigan), LLC
|
|
|
|
|
3.510
|
|
Limited Liability Company Agreement of Bright House Networks Information Services (Michigan), LLC, as amended and restated
|
|
|
|
|
4.1*
|
|
Indenture, dated as of July 23, 2015, among Charter Communications Operating, LLC, Charter Communications Operating Capital Corp. and CCO Safari II, LLC, as issuers, and The Bank of New York Mellon Trust Company, N.A., as
trustee and collateral agent (incorporated by reference to Exhibit 4.1 to the current report on Form 8-K filed by Charter Communications, Inc. on July 27, 2015 (File No. 001-33664))
|
|
|
|
|
4.2*
|
|
First Supplemental Indenture, dated as of July 23, 2015, relating to the the 3.579% Senior Secured Notes due 2020, 4.464% Senior Secured Notes due 2022, 4.908% Senior Secured Notes due 2025, 6.384% Senior Secured Notes due 2035,
6.484% Senior Secured Notes due 2045 and 6.834% Senior Secured Notes due 2055 (including forms of such notes as exhibits thereto), among CCO Safari II, LLC, as escrow issuer, CCH II, LLC, as limited guarantor, and The Bank of New York Mellon Trust
Company, N.A., as trustee and collateral agent (incorporated by reference to Exhibit 4.2 to the current report on Form 8-K filed by Charter Communications, Inc. on July 27, 2015
(File No. 001-33664))
|
E-18
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
4.3*
|
|
Second Supplemental Indenture, dated as of May 18, 2016, by and among Charter Communications Operating, LLC, Charter Communications Operating Capital Corp., CCO Safari II, LLC and The Bank of New York Mellon Trust Company, N.A., as
trustee and collateral agent (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.4*
|
|
Indenture, dated as of May 10, 2011, by and among CCO Holdings, LLC, and CCO Holdings Capital Corp., as Issuers, Charter Communications, Inc., as Parent Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee
(incorporated by reference to Exhibit 4.1 to the current report on Form 8-K of Charter Communications, Inc. filed on May 13, 2011 (File No. 001-33664))
|
|
|
|
|
4.5*
|
|
Third Supplemental Indenture, dated as of January 26, 2012, relating to the 6.625% Senior Notes due 2022 (including the form of such note as an exhibit thereto) by and among CCO Holdings, LLC, and CCO Holdings Capital Corp., as
Issuers, Charter Communications, Inc., as Parent Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated by reference to Exhibit 4.2 to the current report on Form 8-K of Charter Communications, Inc. filed on February
1, 2012 (File No. 001-33664))
|
|
|
|
|
4.6*
|
|
Fourth Supplemental Indenture, dated August 22, 2012, relating to the 5.25% Senior Notes due 2022 (including the form of such note as an exhibit thereto) by and among CCO Holdings, LLC, CCO Holdings Capital Corp. and The Bank of New
York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 10.1 to the quarterly report on Form 10-Q of Charter Communications, Inc. filed on November 6, 2012 (File No. 001-33664))
|
|
|
|
|
4.7*
|
|
Fifth Supplemental Indenture, dated December 17, 2012, relating to the 5.125% Senior Notes due 2023 (including the form of such note as an exhibit thereto) by and among CCO Holdings, LLC, CCO Holdings Capital Corp. and The Bank of
New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 10.9 to the annual report on Form 10-K of Charter Communications, Inc. filed February 22, 2013 (File No. 001-33664))
|
|
|
|
|
4.8*
|
|
Sixth Supplemental Indenture, dated as of March 14, 2013, relating to the 5.25% Senior Notes due 2021 (including the form of such note as an exhibit thereto), by and among CCO Holdings, LLC, and CCO Holdings Capital Corp., as
Issuers, Charter Communications, Inc., as Parent Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K of Charter Communications, Inc. filed March 15,
2013 (File No. 001-33664))
|
|
|
|
|
4.9*
|
|
Seventh Supplemental Indenture, dated as of March 14, 2013, relating to the 5.75% senior notes due 2023 (including the form of such note as an exhibit thereto), by and among CCO Holdings, LLC, and CCO Holdings Capital Corp., as
Issuers, Charter Communications, Inc., as Parent Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated by reference to Exhibit 10.2 to the current report on Form 8-K of Charter Communications, Inc. filed
March 15, 2013 (File No. 001-33664))
|
|
|
|
|
4.10*
|
|
Eighth Supplemental Indenture, dated as of May 3, 2013, relating to the 5.75% senior notes due 2024 (including the form of such note as an exhibit thereto), by and among CCO Holdings, LLC and CCO Holdings Capital Corp., as Issuers,
Charter Communications, Inc., as Parent Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated by reference to Exhibit 10.7 to the quarterly report on Form 10-Q of Charter Communications, Inc. filed on May 7, 2013
(File No. 001-33664))
|
|
|
|
|
4.11*
|
|
Indenture, dated as of November 5, 2014, by and among CCO Holdings, LLC, CCO Holdings Capital Corp. and CCOH Safari, LLC, as Issuers, Charter Communications, Inc., as Parent Guarantor, and The Bank of New York Mellon Trust Company,
N.A., as Trustee (incorporated by reference to Exhibit 4.1 to the current report on Form 8-K of Charter Communications, Inc. filed on November 10, 2014 (File No. 001-33664)).
|
E-19
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
4.12*
|
|
Third Supplemental Indenture, dated as of April 21, 2015, relating to the 5.125% Senior Notes due 2023 (including the form of such note as an exhibit thereto), among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter
Communications, Inc., as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the current report on Form 8-K filed by Charter Communications, Inc. on April 22, 2015 (File No.
001-33664))
|
|
|
|
|
4.13*
|
|
Fourth Supplemental Indenture, dated as of April 21, 2015, relating to the 5.375% Senior Notes due 2025 (including the form of such note as an exhibit thereto), among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter
Communications, Inc., as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 to the current report on Form 8-K filed by Charter Communications, Inc. on April 22, 2015 (File No.
001-33664))
|
|
|
|
|
4.14*
|
|
Fifth Supplemental Indenture, dated as of April 21, 2015, relating to the 5.875% Senior Notes due 2027, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and The Bank of New York Mellon
Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.3 to the current report on Form 8-K filed by Charter Communications, Inc. on April 22, 2015 (File No. 001-33664))
|
|
|
|
|
4.15*
|
|
Sixth Supplemental Indenture, dated as of February 19, 2016, relating to the 5.875% Senior Notes due 2024, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and The Bank of New York
Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the current report on Form 8-K filed by Charter Communications, Inc. on February 22, 2016 (File No. 001-33664))
|
|
|
|
|
4.16*
|
|
Seventh Supplemental Indenture, dated as of April 21, 2016, relating to the 5.50% Senior Notes due 2026, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and The Bank of New York
Mellon Trust Company, N.A., as trustee (incorporated herein by reference to Exhibit 4.1 to the current report on Form 8-K of Charter Communications, Inc. filed April 27, 2016)
|
|
|
|
|
4.17*
|
|
Indenture, dated as of November 20, 2015, among CCO Holdings, LLC, CCO Holdings Capital Corp. and CCOH Safari, LLC, as issuers, and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to
Exhibit 4.1 to the current report on Form 8-K filed by Charter Communications, Inc. on November 25, 2015 (File No. 001-33664))
|
|
|
|
|
4.18*
|
|
First Supplemental Indenture, dated as of November 20, 2015, relating to the 5.75% Senior Notes due 2026 (including the form of such note as an exhibit thereto), between CCOH Safari, LLC, as escrow issuer, and The Bank of New York
Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 to the current report on Form 8-K filed by Charter Communications, Inc. on November 25, 2015 (File No. 001-33664))
|
|
|
|
|
4.19*
|
|
Second Supplemental Indenture, dated as of May 18, 2016, by and among CCO Holdings, LLC, CCO Holdings Capital Corp., CCOH Safari, LLC and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated herein by reference
to Exhibit 4.3 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.20*
|
|
Third Supplemental Indenture, dated as of May 18, 2016, by and among CCO Holdings, LLC, the subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent (incorporated
herein by reference to Exhibit 4.2 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.21*
|
|
Exchange and Registration Rights Agreement, dated July 23, 2015, relating to the 3.579% Senior Secured Notes due 2020, 4.464% Senior Secured Notes due 2022, 4.908% Senior Secured Notes due 2025, 6.384% Senior Secured Notes due 2035,
6.484% Senior Secured Notes due 2045 and 6.834% Senior Secured Notes due 2055, between CCO Safari II, LLC and Goldman, Sachs & Co., Credit
|
E-20
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc. and UBS Securities LLC, as representatives of the several Purchasers (as defined therein) (incorporated by reference
to Exhibit 10.1 to the current report on Form 8-K filed by Charter Communications, Inc. on July 27, 2015 (File No. 001-33664))
|
|
|
|
|
4.22*
|
|
Exchange and Registration Rights Agreement, dated as of April 21, 2015 relating to the 5.125% Senior Notes due 2023, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the several Purchasers (as defined therein) (incorporated by reference to
Exhibit 10.1 to the current report on Form 8-K filed by Charter Communications, Inc. on April 22, 2015 (File No. 001-33664))
|
|
|
|
|
4.23*
|
|
Exchange and Registration Rights Agreement, dated as of April 21, 2015, relating to the 5.375% Senior Notes due 2025, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the several Purchasers (as defined therein) (incorporated by reference to
Exhibit 10.2 to the current report on Form 8-K filed by Charter Communications, Inc. on April 22, 2015 (File No. 001-33664))
|
|
|
|
|
4.24*
|
|
Exchange and Registration Rights Agreement, dated as of April 21, 2015, relating to the 5.875% Senior Notes due 2027, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and Credit
Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the several Purchasers (as defined therein) (incorporated by reference to
Exhibit 10.3 to the current report on Form 8-K filed by Charter Communications, Inc. on April 22, 2015 (File No. 001-33664))
|
|
|
|
|
4.25*
|
|
Exchange and Registration Rights Agreement, dated November 20, 2015 relating to the 5.750% Senior Notes due 2026, between CCOH Safari, LLC and Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, UBS Securities LLC and Deutsche Bank Securities Inc., as representatives of the several Purchasers (as defined therein) (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K filed by Charter
Communications, Inc. on November 25, 2015 (File No. 001-33664))
|
|
|
|
|
4.26*
|
|
Exchange and Registration Rights Agreement, dated February 19, 2016, relating to the 5.875% Senior Notes due 2024, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and Deutsche Bank
Securities Inc., Credit Suisse Securities (USA) LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC, Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, as representatives of the
several Purchasers (as defined therein) (incorporated by reference to Exhibit 10.1 to the current report on Form 8-K filed by Charter Communications, Inc. on February 22, 2016
(File No. 001-33664))
|
|
|
|
|
4.27*
|
|
Exchange and Registration Rights Agreement, dated April 21, 2016, relating to the 5.500% Senior Notes due 2026, among CCO Holdings, LLC, CCO Holdings Capital Corp., Charter Communications, Inc., as guarantor, and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., UBS Securities LLC and Wells Fargo Securities, LLC, as representatives of the
several Purchasers (as defined therein) (incorporated herein by reference to Exhibit 10.2 to the current report on Form 8-K of Charter Communications, Inc. filed April 27, 2016
(File No. 001-33664)
|
E-21
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
4.28*
|
|
Joinder Agreement to Exchange and Registration Rights Agreement, dated as of May 18, 2016, by and among CCO Safari II, LLC, CCH II, LLC, Charter Communications Operating, LLC, Charter Communications Operating Capital Corp., CCO
Holdings, LLC and the other guarantors party thereto (incorporated herein by reference to Exhibit 10.1 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.29*
|
|
Joinder Agreement to Exchange and Registration Rights Agreement, dated as of May 18, 2016, by CCO Holdings, LLC and CCO Holdings Capital Corp (incorporated herein by reference to Exhibit 10.2 to the current report on Form 8-K
filed by CCO Holdings, LLC on May 24, 2016
(File No. 001-37789))
|
|
|
|
|
4.30*
|
|
Indenture, dated as of April 30, 1992 (the “TWCE Indenture”), as amended by the First Supplemental Indenture, dated as of June 30, 1992, among Time Warner Entertainment Company, L.P. (“TWE”), Time Warner
Companies, Inc. (“TWCI”), certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by reference to Exhibits 10(g) and 10(h) to TWCI’s current report on Form 8-K dated
June 26, 1992 and filed with the SEC on July 15, 1992 (File No. 001-8637))
|
|
|
|
|
4.31*
|
|
Second Supplemental Indenture to the TWCE Indenture, dated as of December 9, 1992, among TWE, TWCI, certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by
reference to Exhibit 4.2 to Amendment No. 1 to TWE’s Registration Statement on Form S-4 dated and filed with the SEC on October 25, 1993
(Registration No. 33-67688)
(the “TWE
October 25, 1993 Registration Statement”))
|
|
|
|
|
4.32*
|
|
Third Supplemental Indenture to the TWCE Indenture, dated as of October 12, 1993, among TWE, TWCI, certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by reference
to Exhibit 4.3 to the TWE October 25, 1993 Registration Statement)
|
|
|
|
|
4.33*
|
|
Fourth Supplemental Indenture to the TWCE Indenture, dated as of March 29, 1994, among TWE, TWCI, certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by reference to
Exhibit 4.4 to TWE’s Annual Report on Form 10-K for the year ended December 31, 1993 and filed with the SEC on March 30, 1994 (File No. 001-12878))
|
|
|
|
|
4.34*
|
|
Fifth Supplemental Indenture to the TWCE Indenture, dated as of December 28, 1994, among TWE, TWCI, certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by reference
to Exhibit 4.5 to TWE’s Annual Report on Form 10-K for the year ended December 31, 1994 and filed with the SEC on March 30, 1995 (File No. 001-12878))
|
|
|
|
|
4.35*
|
|
Sixth Supplemental Indenture to the TWCE Indenture, dated as of September 29, 1997, among TWE, TWCI, certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by
reference to Exhibit 4.7 to Historic TW Inc.’s (“Historic TW”) Annual Report on Form 10-K for the year ended December 31, 1997 and filed with the SEC on March 25, 1998 (File No. 001-12259) (the “Time
Warner 1997 Form 10-K”))
|
|
|
|
|
4.36*
|
|
Seventh Supplemental Indenture to the TWCE Indenture, dated as of December 29, 1997, among TWE, TWCI, certain of TWCI’s subsidiaries that are parties thereto and The Bank of New York, as Trustee (incorporated herein by
reference to Exhibit 4.8 to the Time Warner 1997 Form 10-K)
|
|
|
|
|
4.37*
|
|
Eighth Supplemental Indenture to the TWCE Indenture, dated as of December 9, 2003, among Historic TW, TWE, Warner Communications Inc. (“WCI”), American Television and Communications Corporation (“ATC”), TWC and
The Bank of New York, as Trustee (incorporated herein by reference to Exhibit 4.10 to Time Warner Inc.’s (“Time Warner”) Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 001-15062))
|
|
|
|
|
4.38*
|
|
Ninth Supplemental Indenture to the TWCE Indenture, dated as of November 1, 2004, among Historic TW, TWE, Time Warner NY Cable Inc., WCI, ATC, TWC and The Bank of New York, as Trustee (incorporated herein by reference to Exhibit 4.1
to Time Warner’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2004 (File No. 001-15062))
|
E-22
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
4.39*
|
|
Tenth Supplemental Indenture to the TWCE Indenture, dated as of October 18, 2006, among Historic TW, TWE, TW NY Cable Holding Inc. (“TW NY”), Time Warner NY Cable LLC (“TW NY Cable”), TWC, WCI, ATC and The Bank
of New York, as Trustee (incorporated herein by reference to Exhibit 4.1 to Time Warner’s current report on Form 8-K dated and filed October 18, 2006 (File No. 001-15062))
|
|
|
|
|
4.40*
|
|
Eleventh Supplemental Indenture to the TWCE Indenture, dated as of November 2, 2006, among TWE, TW NY, TWC and The Bank of New York, as Trustee (incorporated herein by reference to Exhibit 99.1 to Time Warner’s
current report on Form 8-K dated and filed November 2, 2006 (File No. 001-15062))
|
|
|
|
|
4.41*
|
|
Twelfth Supplemental Indenture to the TWCE Indenture, dated as of September 30, 2012, among Time Warner Cable Enterprises LLC (“TWCE”), TWC, TW NY, Time Warner Cable Internet Holdings II LLC (“TWC Internet
Holdings II”) and The Bank of New York Mellon, as trustee, supplementing the Indenture dated April 30, 1992, as amended (incorporated herein by reference to Exhibit 4.2 to TWC’s current report on Form 8-K dated September 30,
2012 and filed with the SEC on October 1, 2012 (File No. 1-33335) (the “TWC September 30, 2012 Form 8-K”))
|
|
|
|
|
4.42*
|
|
Thirteenth Supplemental Indenture to the TWCE Indenture, dated as of May 18, 2016, among TWCE, the guarantors party thereto and The Bank of New York Mellon (formerly known as the Bank of New York), as Trustee (incorporated herein by
reference to Exhibit 4.4 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.43*
|
|
Indenture, dated as of April 9, 2007 (the “TWC Indenture”), among TWC, TW NY, TWE and The Bank of New York, as trustee (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated April
4, 2007 and filed with the SEC on April 9, 2007 (File No. 001-33335) (the “TWC April 4, 2007 Form 8-K”))
|
|
|
|
|
4.44*
|
|
First Supplemental Indenture to the TWC Indenture, dated as of April 9, 2007, among TWC, TW NY, TWE and The Bank of New York, as trustee (incorporated herein by reference to Exhibit 4.2 to the TWC April 4, 2007
Form 8-K)
|
|
|
|
|
4.45*
|
|
Second Supplemental Indenture to the TWC Indenture, dated as of September 30, 2012, among TWC, TW NY, TWCE, TWC Internet Holdings II and The Bank of New York Mellon, as trustee, supplementing the Indenture dated April 9,
2007, as amended (incorporated herein by reference to Exhibit 4.1 to the TWC September 30, 2012 Form 8-K)
|
|
|
|
|
4.46*
|
|
Third Supplemental Indenture to the TWC Indenture, dated as of May 18, 2016, by and among TWC, TWC NewCo LLC and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (incorporated by reference to Exhibit
4.5 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.47*
|
|
Fourth Supplemental Indenture to the TWC Indenture, dated as of May 18, 2016, by and among TWC NewCo LLC, the guarantors party thereto and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee
(incorporated by reference to Exhibit 4.6 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016 (File No. 001-37789))
|
|
|
|
|
4.48*
|
|
Form of TWC 5.85% Exchange Notes due 2017 (included as Exhibit B to the First Supplemental Indenture incorporated herein by reference to Exhibit 4.2 to the TWC April 4, 2007 Form 8-K)
|
|
|
|
|
4.49*
|
|
Form of TWC 6.55% Exchange Debentures due 2037 (included as Exhibit C to the First Supplemental Indenture incorporated herein by reference to Exhibit 4.2 to the TWC April 4, 2007 Form 8-K)
|
|
|
|
|
4.50*
|
|
Form of TWC 6.75% Notes due 2018 (incorporated herein by reference to Exhibit 4.2 to TWC’s current report on Form 8-K dated June 16, 2008 and filed with the SEC on June 19, 2008 (File No. 001-33335) (the
“TWC June 16, 2008 Form 8-K”))
|
E-23
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
4.51*
|
|
Form of TWC 7.30% Debentures due 2038 (incorporated herein by reference to Exhibit 4.3 to the TWC June 16, 2008 Form 8-K)
|
|
|
|
|
4.52*
|
|
Form of TWC 8.75% Notes due 2019 (incorporated herein by reference to Exhibit 4.2 to TWC’s current report on Form 8-K dated November 13, 2008 and filed with the SEC on November 18, 2008) (File No. 001-33335)
|
|
|
|
|
4.53*
|
|
Form of TWC 8.25% Notes due 2019 (incorporated herein by reference to Exhibit 4.2 to TWC’s current report on Form 8-K dated March 23, 2009 and filed with the SEC on March 26, 2009 (File No. 001-33335))
|
|
|
|
|
4.54*
|
|
Form of TWC 6.75% Debentures due 2039 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated June 24, 2009 and filed with the SEC on June 29, 2009
(File No. 1-33335))
|
|
|
|
|
4.55*
|
|
Form of TWC 3.5% Notes due 2015 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated December 8, 2009 and filed with the SEC on December 11, 2009 (File No. 001-33335 (the “TWC
December 8,2009 Form 8-K”))
|
|
|
|
|
4.56*
|
|
Form of TWC 5.0% Notes due 2020 (incorporated herein by reference to Exhibit 4.2 to the TWC December 8, 2009 Form 8-K)
|
|
|
|
|
4.57*
|
|
Form of TWC 4.125% Notes due 2021 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated November 9, 2010 and filed with the SEC on November 15, 2010 (File No. 001-33335) (the “TWC
November 9, 2010 Form 8-K”))
|
|
|
|
|
4.58*
|
|
Form of TWC 5.875% Debentures due 2040 (incorporated herein by reference to Exhibit 4.2 to the TWC November 9, 2010 Form 8-K)
|
|
|
|
|
4.59*
|
|
Form of TWC 5.75% Note due 2031 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated and filed with the SEC on May 26, 2011 (File No. 001-33335))
|
|
|
|
|
4.60*
|
|
Form of TWC 4% Note due 2021 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated September 7, 2011 and filed with the SEC on September 12, 2011 (File No. 001-33335) (the
“TWC September 7, 2011 Form 8-K”))
|
|
|
|
|
4.61*
|
|
Form of TWC 5.5% Debenture due 2041 (incorporated herein by reference to Exhibit 4.2 to the TWC September 7, 2011 Form 8-K)
|
|
|
|
|
4.62*
|
|
Form of TWC 4.5% Debenture due 2042 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated August 7, 2012 and filed with the SEC on August 10, 2012 (File No.
001-33335))
|
|
|
|
|
4.63*
|
|
Form of TWC 5.25% Note due 2042 (incorporated herein by reference to Exhibit 4.1 to TWC’s current report on Form 8-K dated and filed with the SEC on June 27, 2012 (File No. 001-33335))
|
|
|
|
|
5.1**
|
|
Legal Opinion of Kirkland & Ellis LLP
|
|
|
|
|
10.1*
|
|
Operating Agreement of Charter Communications Holdings, LLC (“Charter Holdings”), dated as of May 18, 2016, by and among Charter Holdings, Charter, A/N and the other party or parties thereto (incorporated herein by
reference to Exhibit 10.1 to the current report on Form 8-K of Charter Communications, Inc. filed May 19, 2016)
|
|
|
|
|
10.2*
|
|
Exchange Agreement, dated as of May 18, 2016, by and among Charter Holdings, Charter, A/N and the other party or parties thereto (incorporated herein by reference to Exhibit 10.2 to the current report on Form 8-K of Charter
Communications, Inc. filed May 19, 2016)
|
|
|
|
|
10.3*
|
|
Registration Rights Agreement, dated as of May 18, 2016, by and among Charter, A/N and Liberty Broadband Corporation (incorporated herein by reference to Exhibit 10.3 to the current report on Form 8-K of Charter Communications, Inc.
filed May 19, 2016)
|
E-24
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
10.4*
|
|
Tax Receivables Agreement, dated as of May 18, 2016, by and among Charter, A/N and the other party or parties thereto (incorporated herein by reference to Exhibit 10.4 to the current report on Form 8-K of Charter
Communications, Inc. filed May 19, 2016)
|
|
|
|
|
10.5*
|
|
Amended and Restated Employment Agreement, dated as of May 17, 2016, between Charter and Thomas M. Rutledge (incorporated herein by reference to Exhibit 10.5 to the current report on Form 8-K of Charter Communications, Inc.
filed May 19, 2016)
|
|
|
|
|
10.6*
|
|
Charter Amended and Restated 2009 Stock Incentive Plan, as amended through May 18, 2016 (incorporated herein by reference to Exhibit 10.6 to the current report on Form 8-K of Charter Communications, Inc. filed May 19,
2016)
|
|
|
|
|
10.7*
|
|
Incremental Activation Notice, dated as of May 18, 2016, by and among Charter Communications Operating, LLC, CCO Holdings, LLC, the subsidiary guarantors party thereto, Bank of America, N.A., as administrative agent and the lenders
party thereto (incorporated herein by reference to Exhibit 10.4 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016)
|
|
|
|
|
10.8*
|
|
Restatement Agreement dated as of May 18, 2016, by and among Charter Communications Operating, LLC, CCO Holdings, LLC, the subsidiary guarantors party thereto, Bank of America, N.A., as administrative agent and the lenders party
thereto (incorporated herein by reference to Exhibit 10.5 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016)
|
|
|
|
|
10.9*
|
|
Collateral Agreement, dated as of May 18, 2016, by Charter Communications Operating, LLC, Charter Communications Operating Capital Corp. and the other grantors party thereto in favor of The Bank of New York Mellon Trust Company,
N.A., as collateral agent (incorporated herein by reference to Exhibit 10.6 to the current report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016)
|
|
|
|
|
10.10*
|
|
First Lien Intercreditor Agreement, dated as of May 18, 2016, by and among Charter Communications Operating, LLC, the other grantors party thereto, Bank of America, N.A., as credit agreement collateral agent for the credit agreement
secured parties, The Bank of New York Mellon Trust Company, N.A., as notes collateral agent for the indenture secured parties, and each additional agent from time to time party thereto (incorporated herein by reference to Exhibit 10.7 to the current
report on Form 8-K filed by CCO Holdings, LLC on May 24, 2016)
|
|
|
|
|
10.11*
|
|
Time Warner Cable Inc. 2006 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.45 to TWC’s current report on Form 8-K dated February 13, 2007 and filed with the SEC on February 13, 2007)
|
|
|
|
|
10.12*
|
|
Time Warner Cable Inc. 2006 Stock Incentive Plan, as amended, effective March 12, 2009 (incorporated herein by reference to Exhibit 10.1 to TWC’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2009)
|
|
|
|
|
10.13*
|
|
Time Warner Cable Inc. 2011 Stock Incentive Plan (incorporated herein by reference to Annex A to TWC’s definitive Proxy Statement dated April 6, 2011 and filed with the SEC on April 6, 2011).
|
|
|
|
|
12.1**
|
|
Computation of Ratio of Earnings to Fixed Charges
|
|
|
|
|
23.1**
|
|
Consent of Kirkland & Ellis, LLP (included with Exhibit 5.1)
|
|
|
|
|
23.2**
|
|
Consent of KPMG LLP (St. Louis, MO) relating to the audit report on the financial statements of Charter Communications, Inc.
|
|
|
|
|
23.3**
|
|
Consent of Ernst & Young LLP (New York, NY) relating to the audit report on the financial statements of Time Warner Cable Inc.
|
|
|
|
|
23.4**
|
|
Consent of KPMG LLP (New York, NY) relating to the audit report on the financial statements of Bright House Networks, LLC
|
E-25
|
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
|
24.1**
|
|
Powers of Attorney (included on the signature pages of this Form S-4 and incorporated by reference)
|
|
|
|
|
25.1**
|
|
Statement of Eligibility of The Bank of New York Mellon Trust Company, N.A. with respect to the indenture, dated as of July 23, 2015, among Charter Communications Operating, LLC, Charter Communications Operating Capital Corp. and
CCO Safari II, LLC, as issuers, and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent
|
|
|
|
|
99.1**
|
|
Form of Letter of Instruction
|
|
*
|
Incorporated by reference and not filed herewith.
|
E-26
Exhibit 3.251
CERTIFICATE OF LIMITED PARTNERSHIP
OF
FALCON COMMUNITY CABLE, L.P.
THIS Certificate of Limited Partnership of FALCON COMMUNITY CABLE, L.P. (the “Partnership”), dated as of July 20th, 1989, is
being duly executed and filed by FALCON COMMUNITY INVESTORS, L.P., a California limited partnership, as general partner, to form a limited partnership under the Delaware Revised Uniform Limited Partnership Act (6
Del.C.
Section 17-101,
et
seq
.).
1.
Name
. The name of the limited partnership formed hereby is FALCON COMMUNITY
CABLE, L.P.
2.
Registered Office
. The address of the registered office of the Partnership in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
3.
Registered Agent
. The name and address of the registered agent for service of process on the Partnership in
the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
4.
General Partner
. The name and the business address of the sole general partner of the Partnership is FALCON COMMUNITY INVESTORS,
L.P., 10866 Wilshire Boulevard, Suite 500, Los Angeles, California 90024.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership as of
the date first above written.
|
|
|
|
|
FALCON COMMUNITY INVESTORS, L.P.,
a
California limited partnership
|
|
|
|
|
By
|
|
FALCON HOLDING GROUP, INC.,
|
|
a California corporation,
Its
General Partner
|
|
|
|
|
By
|
|
/s/ Stanley S. Itskowitch
|
|
|
|
STANLEY S. ITSKOWITCH
Senior Vice
President
|
2
|
|
|
|
|
|
|
|
|
|
|
STATE OF DELAWARE
|
|
|
|
|
|
SECRETARY OF STATE
|
|
|
|
|
|
DIVISION OF CORPORATIONS
|
|
|
|
|
|
FILED 09:00 AM 03/30/1993
|
|
|
|
|
|
930915405 – 2202750
|
CERTIFICATE OF AMENDMENT
TO
THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
FALCON COMMUNITY CABLE, L.P.
FALCON COMMUNITY CABLE, L.P., a limited partnership organized under the Delaware Revised Limited Partnership Act (the “Act”), for
the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 4 of the Certificate of Limited Partnership is amended to read in its entirety as follows:
4.
General Partners
. The names and business addresses of each of the corporate General Partners of the Partnership are as follows:
Falcon Holding Group, Inc.
10900 Wilshire Blvd.
15th Fl.
Los Angeles, CA 90024
Falcon Holding Group, L.P.
10900 Wilshire Blvd.
15th Fl.
Los Angeles, CA 90024
IN
WITNESS WHEREOF, this Certificate of Amendment has been duly executed by each general partner designated herein as a new partner as of the 29th day of March, 1993.
|
|
|
|
|
|
|
FALCON HOLDING GROUP, L.P.
|
|
|
|
|
By:
|
|
FALCON HOLDING GROUP, INC.
|
|
|
|
|
By:
|
|
/s/ Stanley S. Itskowitch
|
|
Name:
|
|
Stanley S. Itskowitch
|
|
Title:
|
|
Exec. V.P.
|
|
|
|
|
|
|
FALCON HOLDING GROUP, INC.
|
|
|
|
|
By:
|
|
/s/ Stanley S. Itskowitch
|
|
Name:
|
|
Stanley S. Itskowitch
|
|
Title:
|
|
Exec.V.P.
|
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON
COMMUNITY CABLE, L.P.
Falcon Community Cable, L.P., a limited partnership organized under the Delaware Revised Limited Partnership Act
(the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 4 of the Certificate of Limited Partnership is amended to read in its entirety as
follows:
4.
General Partners
. The names and business addresses of each of the General Partners of the Partnership are as follows:
Falcon Community Investors, L.P., a California Limited Partnership
10900 Wilshire Boulevard
15th
Floor
Los Angeles, California 90024
Falcon Cable Communications, LLC
10900 Wilshire Boulevard
15th
Floor
Los Angeles, California 90024
IN WITNESS WHEREOF, this Certificate of Amendment has been duly executed by each general partner designated herein as a new partner as of the
30
th
day of September 1998.
|
|
|
|
|
FALCON CABLE COMMUNICATIONS, LLC
|
|
|
|
|
By:
|
|
Falcon Communications, L.P., its sole Member
|
|
By:
|
|
Falcon Holding Group, L.P., its Managing General
Partner
|
|
By :
|
|
Falcon Holding Group, Inc. its General Partner
|
|
|
|
|
By:
|
|
/s/ Stanley S. Itskowitch
|
|
Name:
|
|
Stanley S. Itskowitch
|
|
Title:
|
|
Executive Vice President
|
|
|
|
|
|
|
|
|
|
|
|
STATE OF DELAWARE
|
|
|
|
|
|
SECRETARY OF STATE
|
|
|
|
|
|
DIVISION OF CORPORATIONS
|
|
|
|
|
|
FILED 12:30 PM 09/30/1998
|
|
|
|
|
|
981379078 – 2202750
|
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF
LIMITED PARTNERSHIP
OF
FALCON COMMUNITY CABLE, L.P.
FALCON COMMUNICTY CABLE, L.P.
,
a limited partnership organized and existing under and by virtue of the Revised Uniform Limited
Partnership Act of the State of Delaware, DOES HEREBY CERTIFY:
|
|
1.
|
Article 2 of the Certificate of Limited Partnership is hereby amended as follows:
|
: The address of its registered office in the State of Delaware is
30 Old Rudnick Lane, Dover, DE 19901, County of
Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
|
|
2.
|
That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware.
|
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this 9th day of December, 1999.
|
|
|
|
|
FALCON CABLE COMMUNICATIONS, LLC General Partner
|
|
|
|
|
By:
|
|
/s/ Marcy Lifton
|
|
|
|
Marcy Lifton, Vice President
|
|
|
|
FALCON COMMUNITY INVESTORS, A California Limited Partnership
General Partner
|
|
|
|
|
By:
|
|
/s/ Marcy Lifton
|
|
|
|
Marcy Lifton, Vice President
|
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON
COMMUNITY CABLE, L.P.
Falcon Community Cable, L.P., a limited partnership organized under the Delaware Revised Limited Partnership Act
(the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 4 of the Certificate of Limited Partnership is amended to read in its entirety as
follows:
4.
General Partners
. The names and business addresses of each of the General Partners of the Partnership are as follows:
Charter Communications VII, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, MO 63131-3660
Falcon Cable Communications, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, MO 63131-3660
IN
WITNESS WHEREOF, this Certificate of Amendment has been duly executed on the 25th day of June, 2001 by each General Partner designated herein as a new partner.
|
|
|
|
|
Charter Communications VII, LLC,
a
Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Marcy Lifton
|
|
Name:
|
|
Marcy Lifton
|
|
Title:
|
|
Vice President
|
|
|
|
Falcon Cable Communications, LLC,
a
Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Marcy Lifton
|
|
Name:
|
|
Marcy Lifton
|
|
Title:
|
|
Vice President
|
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON
COMMUNITY CABLE, L.P.
Falcon Community Cable, L.P., a limited partnership organized under the Delaware Revised Limited Partnership Act
(the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 4 of the Certificate of Limited Partnership is amended to read in its entirety as
follows:
4.
General Partner
. The name and business address of the sole General Partner of the Partnership is as follows:
Charter Communications VII, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, MO 63131-3660
IN
WITNESS WHEREOF, this Certificate of Amendment has been duly executed on the 23rd day of July, 2001 by the undersigned as the sole General Partner designated herein.
|
|
|
|
|
Charter Communications VII, LLC,
a
Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Marcy Lifton
|
|
Name:
|
|
Marcy Lifton
|
|
Title:
|
|
Vice President
|
Exhibit 3.252
FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
FALCON COMMUNITY
CABLE, L.P.,
A DELAWARE LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
This FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON COMMUNITY CABLE, L.P., A DELAWARE LIMITED
PARTNERSHIP (this “
Agreement
”), is entered into as of July 1, 2001 by and between CHARTER COMMUNICATIONS VII, LLC, a Delaware limited liability company (“
CC VII
”) as the general partner (the “
General
Partner
”), and FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company (“
FCC
”) as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the
partners of FALCON COMMUNITY CABLE, L.P., a Delaware limited partnership (the “
Partnership
”).
W I T N E S S E T H:
WHEREAS, CC VII and FCC were parties to that certain FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON
COMMUNITY CABLE, L.P. dated as of May 24, 2001 (the “
Prior Agreement
”) pursuant to which CC VII held a 1% general partner interest in the Partnership and FCC held a .7714% general partner interest and a 98.2286% limited partner
interest in the Partnership;
WHEREAS, CC VII and FCC are all of the Partners of the Partnership and desire to amend and restate the Prior
Agreement to recharacterize the partnership interest held by FCC such that FCC will hold a 99% limited partner interest in the Partnership.
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a) Effective as of the date and time of filing of the Certificate of Formation
(“Certificate”)
in the office of the Delaware
Secretary of State, the Partnership was formed as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et seq
. (the
“Act”
). Except as expressly provided herein, the
rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be “Falcon Community Cable, L.P.” The
business of the Partnership shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered
agent shall be as stated in the Certificate or as otherwise determined by the General Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite 400, St. Louis, MO 63131. At any time, the
General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership
commenced on the date of the filing of the Certificate in the office of the Delaware Secretary of State and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s), shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be conducted by
the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner interest
shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the authority of,
and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The
General Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as
otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were elected.
- 2 -
The General Partner(s) shall have the authority to convert the Partnership into a limited
liability company and to take all actions necessary, convenient, desirable or incidental to such conversion.
Except as
otherwise required by applicable law, each General Partner shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note,
mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
No annual or regular
meetings of the General Partner(s) or the Partners are required. The General Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business of the
Partnership to a Board of Directors (the
“Board”)
which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be done
by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the
members of the Board may not be assigned or delegated to any person or entity.
ii) Except as otherwise provided herein,
members of the Board shall possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation
organized under the laws of the State of Delaware.
iii) The number of directors shall initially be one (1), which number
may be changed from time to time by the General Partner(s). The initial director shall be Jerald L. Kent.
iv) Each
director shall be appointed by the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for
attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
- 3 -
(c)
Consent Required.
The affirmative vote, approval, consent or ratification
of the General Partner(s) shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner(s);
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another entity;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi) operate
the Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who
is a director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
xiv) materially change any of the tax reporting positions or elections of the Partnership;
xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
- 4 -
xvi) make or incur any secured or unsecured indebtedness which individually or in the
aggregate exceeds Five Million Dollars ($5,000,000), provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any
indebtedness to (or guarantee of indebtedness of) any company controlled by or under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise
permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner(s).
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such
place as shall from time to time be determined by the Board, but not less often than annually.
ii)
Special
Meetings.
Special meetings of the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written request of Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting
of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section
4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of
Section 4(c), at all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors
present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the
discharge of its duties to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise
- 5 -
under similar circumstances, in the manner it reasonably believes to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership
or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within the scope of authority conferred by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including
a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold office at the pleasure of
the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the General Partner(s) or the
President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and
resolutions of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the
General Partner(s) to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no
Chairman, the most senior available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to
all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as
shall be assigned to him or her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General
Partner(s) or the President to the contrary, any Senior Vice President shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
- 6 -
iii)
The Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as the Board may direct, a book of minutes of
all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors’
meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the General Partner(s) or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of the Partnership funds and securities and shall keep or cause to be
kept full and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of
the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner(s) or the Board.
SECTION 6.
Partners.
(a) The Partners of the Partnership shall be set forth on
Schedule
A
hereto. Other persons or entities may
be admitted as Partners from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall
be liable for the debts, liabilities and obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be
expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever. Except as
otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other assets
as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule A
). Liquidating
distributions shall be divided among the Partners in, accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-l(b)(2)(iv)), and such liquidating distributions
shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
- 7 -
SECTION 8.
Allocations.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number
of partnership units (as set forth in
Schedule A
).
(b) All allocations of Partnership income, gain, loss,
deductions, and other items shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to
satisfy the alternate test for economic effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s
capital account (in excess of any limited dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the
extent to which this clause (i) is satisfied, such Partner’s capital account shall be reduced for the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted
as provided in the Regulations related thereto), and (ii) a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or
(
6
) shall be allocated items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as
quickly as possible. The limitations and allocations described in the preceding sentence (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the
Partners that to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore,
notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it
determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory
Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION
9.
Dissolution; Winding Up.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the
General Partner(s) or (ii) the occurrence of any event required to cause the dissolution of the Partnership under the Act.
(b) Any
dissolution of the Partnership shall be effective as of the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed
in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the
purposes of winding up its business and affairs as soon as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately
- 8 -
commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In winding up the business and affairs of the Partnership, the General
Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the
Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against the Partnership, (iii) the making of reasonable provisions
for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of
the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or
otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 10 shall not restrict
the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General Partner(s) shall
provide notice of such transfer to each of the other Partners and shall amend
Schedule
A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished by
the amendment of this Agreement.
SECTION 12.
Tax Matters.
The Partners agree that it is intended that the Partnership shall
be treated as a partnership for purposes of United States federal, state and local income tax laws, and further agree not to take any position or make any election, in a tax return or otherwise, inconsistent therewith. The “Tax Matters
Partner” of the Partnership for purposes of section 6231(a)(7) of the Internal Revenue Code of 1986, as amended, shall be CC VII. The Tax Matters Partner shall have the power to manage and control, on behalf of the Partnership, any
administrative proceeding at the Partnership level with the Internal Revenue Service relating to the determination of any item of Partnership income, gain, loss, deduction or credit for federal income tax purposes.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its
- 9 -
investment, and if the property of the Partnership remaining after the discharge of the debts and liabilities of the Partnership is insufficient to return such investment, each Partner shall
have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the
other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or
proceeding to which a Partner, any of such Partner’s affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the
Partnership, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership
shall indemnify and hold harmless the Partners, any such affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in
connection with such claim, action, suit or proceeding;
provided, however,
that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or
fraud. Any act or omission by any Partner, any of such Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner,
such affiliate or such Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption
that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the Partnership and not from the
Partners.
SECTION 14.
Miscellaneous.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an
action on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or
time of such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the
General Partner(s) may approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
- 10 -
(d) This Agreement shall be binding upon and inure to the benefit of the Partners
and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the
invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- 11 -
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first
written above.
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CHARTER COMMUNICATIONS VII, LLC
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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FALCON CABLE COMMUNICATIONS, LLC
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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SCHEDULE A
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Partner Name
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Number and Type of Units
|
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Charter Communications VII, LLC
|
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1 general partner
|
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Falcon Cable Communications, LLC
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99 limited partner
|
Exhibit 3.253
State of California
March Fong Eu Form LP-1
Secretary of State
CERTIFICATE OF LIMITED PARTNERSHIP
IMPORTANT—Read instructions on back before completing this form
This Certificate is
presented for filing pursuant to Section 15621, California Corporations Code.
1. NAME OF LIMITED PARTNERSHIP
Falcon Community Ventures I Limited Partnership.
2. STREET ADDRESS OF PRINCIPAL EXECUTIVE
OFFICE CITY AND STATE ZIP CODE
10866 Wilshire Boulevard Los Angeles, CA 90024
3. STREET ADDRESS OF CALIFORNIA OFFICE IF EXECUTIVE OFFICE IS IN ANOTHER STATE CITY ZIP CODE
N/A CA
4. COMPLETE IF LIMITED PARTNERSHIP WAS FORMED PRIOR TO JULY 1, 1984
AND IS IN EXISTENCE ON DATE THIS CERTIFICATE IS EXECUTED.
THE ORIGINAL LIMITED PARTNERSHIP CERTIFICATE WAS RECORDED ON 19 WITH THE
RECORDER OF COUNTY.
FILE OR RECORDATION NUMBER
5. NAMES AND ADDRESSES OF ALL GENERAL PARTNERS: (CONTINUE ON SECOND PAGE, IF NECESSARY)
A.
NAME: Falcon Community Enterprises, Inc. C. NAME:
ADDRESS: 10866 Wilshire Blvd. ADDRESS:
CITY: Los Angeles STATE: CA ZIP CODE: 90024 CITY: STATE: ZIP CODE:
B.
NAME: D. NAME:
ADDRESS: ADDRESS:
CITY: STATE: ZIP CODE: CITY: STATE: ZIP
CODE:
6. NAME AND ADDRESS OF AGENT FOR SERVICE OF PROCESS:
NAME: Mark Goldman
ADDRESS: 1801 Century Park East, Suite 2222 CITY: Los Angeles STATE: CA ZIP CODE: 90067
7. ANY OTHER MATTERS TO BE INCLUDED IN THIS CERTIFICATE MAY BE NOTED ON SEPARATE PAGES AND BY REFERENCE HEREIN ARE A PART OF THIS CERTIFICATE.
8. INDICATE THE NUMBER OF GENERAL PARTNERS SIGNATURES REQUIRED FOR FILING CERTIFICATES OF AMENDMENT, DISSOLUTION, CONTINUATION AND CANCELLATION.
NUMBER OF PAGES ATTACHED: 0 NUMBER OF GENERAL PARTNER(S) SIGNATURE(S) IS/ARE: 1
(PLEASE
INDICATE NUMBER ONLY)
9. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS CERTIFICATE OF LIMITED PARTNERSHIP WHICH EXECUTION IS MY (OUR)
ACT AND DEED. (SEE INSTRUCTIONS)
Falcon Community Enterprises, Inc.
SIGNATURE
ILLEGIBLE BY: SIGNATURE
President 8/25/89
POSITION OR TITLE DATE POSITION OR
TITLE DATE
SIGNATURE SIGNATURE
POSITION OR TITLE
DATE POSITION OR TITLE DATE
10. RETURN ACKNOWLEDGEMENT TO:
NAME Lucille
Pavco, Esq.
ADDRESS Dow Lohnes & Albertson
CITY 1255 23rd st. NW. Suite
500
STATE Washington, DC 20037
ZIP CODE
SEC/STATE REV. 1/88
FORM LP-1—FILING FEE: $70
Approved by Secretary of State
THIS SPACE FOR FILING OFFICER USE
8924000005
FILED
In the office of the Secretary of State
of the State of California
AUG 28 1989 MARCH FONG EU
SECRETARY OF STATE
State of California
March Fong Eu
Secretary of State
Form LP-2
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
IMPORTANT—Read instructions on back
before completing this form
This Certificate is presented for filing pursuant to Section 15622, California Corporations Code.
1. SECRETARY OF STATE FILE NO.
(ORIGINAL CERTIFICATE—FORM LP-1)
8924000005
2. NAME OF LIMITED PARTNERSHIP
Falcon Community Ventures I Limited Partnership
3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS
AMENDED AS FOLLOWS: (COMPLETE APPROPRIATE SUB-SECTION(S) CONTINUE ON SECOND PAGE, IF NECESSARY).
A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO:
B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE:
ADDRESS:
CITY: STATE: ZIP CODE:
E. GENERAL PARTNER NAME CHANGE:
OLD NAME:
NEW NAME:
C. CALIFORNIA OFFICE ADDRESS CHANGE:
ADDRESS:
CITY: STATE:
CA ZIP CODE:
F. GENERAL PARTNER(S) WITHDRAWN:
NAME: Falcon Community Enterprises, Inc.
NAME:
D. GENERAL PARTNER ADDRESS CHANGE:
NAME:
ADDRESS:
CITY:
STATE: ZIP CODE:
G. GENERAL PARTNER ADDED:
NAME: Falcon Community Cable, L.P.
ADDRESS: 10866 Wilshire Boulevard, Suite 500
CITY: Los Angeles STATE:
CA ZIP CODE: 90024
H. INFORMATION CONCERNING THE AGENT FOR SERVICE
OF PROCESS HAS BEEN CHANGED TO
NAME:
ADDRESS:
CITY: STATE: CA ZIP CODE:
1. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND FILE CERTIFICATES OF AMENDMENT, DISSOLUTION, CONTINUATION AND CANCELLATION IS CHANGED TO:
(PLEASE INDICATE NUMBER ONLY)
J. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED
PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGES:
NUMBER OF PAGES ATTACHED: 1
4. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO, EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP, WHICH EXECUTION IS MY (OUR) ACT AND
DEED. (SEE INSTRUCTIONS)
Illegible Illegible
SIGNATURE SIGNATURE
Executive Vice President Executive Vice President
POSITION OR
TITLE DATE POSITION OR
TITLE DATE
Falcon Holding Group, Inc., Gen. Partner of Falcon
Community
Falcon Holding Group, Inc., General Partner of Falcon Community Investors,
SIGNATURE SIGNATURE l.p., general partner of folcon community cable, L.p.
Investors, L.P.
POSITION OR
TITLE DATE POSITION OR
TITLE DATE
THIS SPACE FOR FILING OFFICER USE
8924000005
FILED
In the office of the Secretary of State
of the State of California
FEB 11 1992
MARCH FONG EU
SECRETARY OF STATE
5. RETURN ACKNOWLEDGEMENT TO:
NAME Ronald M. Boldt, Esq.
ADDRESS Schiffmacher, Weinstein, Boldt & Racine
CITY 1801 Century Park East, Suite 2200
STATE Los Angeles, CA 90067
ZIP CODE
SEC/STATE REV.
1/88 FORM LP-2—FILING FEE, $15
Approved by Secretary of State
FALCON COMMUNITY VENTURES I LIMITED PARTNERSHIP
File No. 8924000005
Attachment to LP–2
|
3. G.
|
General Partner Added;
|
|
|
Falcon Community Investors, L.P.
|
State of California
Secretary of State
bill jones
FILED in the office of the Secretary of State of the State of California
DEC 23 1999
BILL JONES, Secretary of State
This Space For Filing Use Only
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
A $30.00 filing fee must accompany this form. IMPORTANT– Read Instructions before completing this form.
1. SECRETARY OF STATE FILE NUMBER
198924000005
2. NAME OF LIMITED PARTNERSHIP
Falcon Community Ventures I, Limited Partners
3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY.
A. LIMITED PARTNERSHIP NAME (END THE NAME WITH THE WORDS “LIMITED PARTNERSHIP” OR THE ABBREVIATION “L.P.”)
B. THE STREET ADDRESS OF THE PRINCIPAL OFFICE
Address 12444
Powerscourt Drive, Suite 100
CITY St. Louis STATE MO ZIP CODE 63131
C. THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS ARE KEPT STREET ADDRESS
CITY
STATE CA ZIP CODE
D. THE ADDRESS OF GENERAL PARTNER(S)
NAME
address 12444 Powerscourt Drive, Suite 100
CITY St. Louis STATE MO
ZIP CODE 63131
E. NAME CHANGE OF A GENERAL PARTNER
FROM: TO:
F. GENERAL PARTNER(S) CESSATION
G. GENERAL PARTNER ADDED
NAME
ADDRESS
CITY
STATE
ZIP CODE
H. THE PERSON(S) AUTHORIZED TO WIND UP AFFAIRS OF THE LIMITED
PARTNERSHIP
NAME
ADDRESS
CITY STATE
ZIP CODE
I. THE NAME OF THE AGENT FOR SERVICE OF PROCESS
GKL Corporate/Search, Inc.
J. IF AN INDIVIDUAL, CALIFORNIA ADDRESS OF THE AGENT FOR SERVICE OF PROCESS ADDRESS
CITY
STATE CA
ZIP CODE
K. NUMBER OF GENERAL PARTNERS’ SIGNATURES REQUIRED FOR FILING CERTIFICATES OF
AMENDMENT, RESTATEMENT, MERGER, DISSOLUTION, CONTINUATION AND CANCELLATION.
L. OTHER MATTERS (ATTACH ADDITIONAL PAGES, IF NECESSARY).
4. TOTAL NUMBER OF PAGES ATTACHED (IF ANY)
5. I CERTIFY THAT THE STATEMENTS CONTAINED IN THIS
DOCUMENT ARE TRUE AND CORRECT TO MY OWN KNOWLEDGE. I DECLARE THAT I AM THE PERSON WHO IS EXECUTING THIS INSTRUMENT. WHICH EXECUTION IS MY ACT AND DEED.
Falcon
Community Cable, L.P. By:
Vice President
SIGNATURE
POSITION OR TITLE
Marcy Lifton
PRINT NAME DATE
Falcon Community Investors, A California Limited
Partnership By:
Marcy Lifton
PRINT NAME DATE
SIGNATURE Vice President POSITION OR TITLE
FORM LP-2–FILING FEE: $30.00
Approved by Secretary of State
SEC/STATE (REV. 10/98)
State of California
Secretary of State
bill jones
FILED in the office of the Secretary of State of the State of California
JUN 22 2001
BILL JONES, Secretary of State
This Space For Filing Use Only
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
A $30.00 filing fee must accompany this form. IMPORTANT — Read Instructions before completing this form.
1.SECRETARY OF STATE FILE NUMBER
198924000005
2. NAME OF LIMITED PARTNERSHIP
Falcon Community Ventures I Limited Partnership
3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY.
A. LIMITED PARTNERSHIP NAME (END THE NAME WITH THE WORDS “LIMITED PARTNERSHIP” OR THE ABBREVIATION “L.P.”)
B. THE STREET ADDRESS OF THE PRINCIPAL OFFICE
Address
CITY STATE ZIP CODE
C. THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS
ARE KEPT
STREET ADDRESS
CITY
STATE CA ZIP CODE
D. THE ADDRESS OF GENERAL PARTNER(S)
NAME
address
CITY
STATE
ZIP CODE
E. NAME CHANGE OF A GENERAL PARTNER
FROM: TO:
F. GENERAL PARTNER(S) CESSATION
Falcon Community Investors, L.P
G. GENERAL PARTNER ADDED
NAME Falcon Cable Community, LLC
ADDRESS 12444 Powerscourt Drive, 100
CITY St. Louis
STATE Missouri
ZIP CODE 63131
H. THE PERSON(S) AUTHORIZED TO WIND UP AFFAIRS OF THE LIMITED PARTNERSHIP
NAME
ADDRESS
CITY STATE
ZIP CODE
I. THE NAME OF THE AGENT FOR SERVICE OF PROCESS
J. IF AN INDIVIDUAL CALIFORNIA ADDRESS OF THE
AGENT FOR SERVICE OF PROCESS ADDRESS
CITY
STATE CA
ZIP CODE
K. NUMBER OF GENERAL PARTNERS’ SIGNATURES REQUIRED FOR FILING CERTIFICATES OF
AMENDMENT, RESTATEMENT, MERGER, DISSOLUTION, CONTINUATION AND CANCELLATION.
L. OTHER MATTERS (ATTACH ADDITIONAL PAGES, IF NECESSARY).
4. TOTAL NUMBER OF PAGES ATTACHED (IF ANY)
- 0 -
5. I CERTIFY THAT THE STATEMENTS CONTAINED IN THIS DOCUMENT ARE TRUE AND CORRECT TO MY OWN KNOWLEDGE. I DECLARE THAT I AM THE PERSON WHO IS EXECUTING THIS INSTRUMENT WHICH
EXECUTION IS MY ACT AND DEED.
Marcy Lifton Marcy Lifton, Vice President of Position or Title Falcon Cable Communications, LLC 5/24/01
SIGNATURE PRINT NAME DATE
Marcy Lifton Marcy Lifton, Vice President of
Position or Title Falcon community Cable L.P. 5/24/01 PRINT NAME DATE
SIGNATURE POSITION OR TITLE
SEC STATE (REV 10/98)
FORM LP-2-FILING FEE:$30.00
Approved by Secretary of State
State of California
Secretary of State
bill jones
FILED in the office of the Secretary of State of the State of California
JUL 25 2001
BILL JONES, Secretary of State
This Space For Filing Use Only
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
A $30.00 filing fee must accompany this form. IMPORTANT – Read Instructions before completing this form.
1.SECRETARY OF STATE FILE NUMBER
198924000005
2. NAME OF LIMITED PARTNERSHIP
Falcon Community Ventures I Limited Partnership
3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY.
A. LIMITED PARTNERSHIP NAME (END THE NAME WITH THE WORDS “LIMITED PARTNERSHIP” OR THE ABBREVIATION “L.P.”)
B. THE STREET ADDRESS OF THE PRINCIPAL OFFICE
Address
CITY STATE ZIP CODE
C. THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS
ARE KEPT
STREET ADDRESS
CITY
STATE CA ZIP CODE
D. THE ADDRESS OF GENERAL PARTNER(S)
NAME
address
CITY
STATE
ZIP CODE
E. NAME CHANGE OF A GENERAL PARTNER
FROM: TO:
F. GENERAL PARTNER(S) CESSATION
Falcon Community cable, L.P.
G. GENERAL PARTNER ADDED
NAME
ADDRESS
CITY
STATE
ZIP CODE
H. THE PERSON(S) AUTHORIZED TO WIND UP AFFAIRS OF THE LIMITED
PARTNERSHIP
NAME
ADDRESS
CITY STATE
ZIP CODE
I. THE NAME OF THE AGENT FOR SERVICE OF PROCESS
J. IF AN INDIVIDUAL, CALIFORNIA ADDRESS OF THE
AGENT FOR SERVICE OF PROCESS ADDRESS
CITY
STATE CA
ZIP CODE
K. NUMBER OF GENERAL PARTNERS’ SIGNATURES REQUIRED FOR FILING CERTIFICATES OF
AMENDMENT, RESTATEMENT, MERGER, DISSOLUTION, CONTINUATION AND CANCELLATION.
L. OTHER MATTERS (ATTACH ADDITIONAL PAGES, IF NECESSARY).
4. TOTAL NUMBER OF PAGES ATTACHED (IF ANY)
5. I CERTIFY THAT THE STATEMENTS CONTAINED IN THIS
DOCUMENT ARE TRUE AND CORRECT TO MY OWN KNOWLEDGE. I DECLARE THAT I AM THE PERSON WHO IS EXECUTING THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED.
Marcy
Lifton, Vice President of
Signature Position or title
Marcy Lifton, Vice
President of
Signature Position or title
Falcon cable communications, LLC
7/23/01
Print name Date
Falcon Community Cable, L.P. 7/23/01
Print name Date
FORM LP-2 – FILING FEE: $30.00
Approved by Secretary of State
SEC/STATE (REV. 10/98)
State of California
Secretary of State
bill jones
FILED in the office of the Secretary of State of the State of California
NOV – 8 2002
BILL JONES, Secretary of State
This Space For Filing Use Only
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
A $30.00 filing fee must accompany this form. IMPORTANT— Read Instructions before completing this form.
1.SECRETARY OF STATE FILE NUMBER
198924000005
2. NAME OF LIMITED PARTNERSHIP
Falcon Community Ventures I Limited Partnership
3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY.
A. LIMITED PARTNERSHIP NAME (END THE NAME WITH THE WORDS “LIMITED PARTNERSHIP” OR THE ABBREVIATION “L.P.”)
B. THE STREET ADDRESS OF THE PRINCIPAL OFFICE
Address 12405
Powerscourt Dr.
CITY St. Louis
STATE MO ZIP CODE
63131-3674
C. THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS ARE KEPT
STREET
ADDRESS
CITY
STATE CA ZIP CODE
D. THE ADDRESS OF GENERAL PARTNER(S)
NAME Falcon cable Communications, LLC
address 12405 Powerscourt Dr.
CITY St. Louis
STATE MO
ZIP CODE 63131-3674
E. NAME CHANGE OF A GENERAL PARTNER
FROM: TO:
F. GENERAL PARTNER(S) CESSATION
G. GENERAL PARTNER ADDED
NAME
ADDRESS
CITY
STATE
ZIP CODE
H. THE PERSON(S) AUTHORIZED TO WIND UP AFFAIRS OF THE LIMITED
PARTNERSHIP
NAME
ADDRESS
CITY STATE
ZIP CODE
I. THE NAME OF THE AGENT FOR SERVICE OF PROCESS
LexisNexis Document Solutions Inc.
J. IF AN INDIVIDUAL, CALIFORNIA ADDRESS OF THE AGENT FOR SERVICE OF PROCESS ADDRESS
CITY
STATE CA
ZIP CODE
K. NUMBER OF GENERAL PARTNERS’ SIGNATURES REQUIRED FOR FILING CERTIFICATES OF
AMENDMENT, RESTATEMENT, MERGER DISSOLUTION, CONTINUATION AND CANCELLATION.
L. OTHER MATTERS (ATTACH ADDITIONAL PAGES, IF NECESSARY).
4. TOTAL NUMBER OF PAGES ATTACHED (IF ANY)
5. I CERTIFY THAT THE STATEMENTS CONTAINED IN THIS
DOCUMENT ARE TRUE AND CORRECT TO MY OWN KNOWLEDGE. I DECLARE THAT I AM THE PERSON WHO IS EXECUTING THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED.
Falcon
Cable Communications, LLC - GP
Signature Position or title
Signature Position
or title
Marcy Lifton, Vice President 10/ /02
Print name Date
Print name Date
FORM LP-2-FILING FEE:$30.00
Approved by Secretary of State
SEC STATE (REV 10/98)
LP-2 Amendment to Certificate of limited Partnership (LP) To change information of record for your LP, fill out this form, and submit
for filing along with:
– A $30 filing fee.
– A separate,
non-refundable $15 service fee also must be included, if you drop off the completed form.
Item 3–7: Only fill out the information that is changing. Attach
extra pages if you need more space or need to include any other matters.
For questions about this form, go to www.sos.ca.gov/business/be/filing-tips.htm
(1) LP’s File No. (issued by CA Secretary of state) 198924000005
(2)
LP’s Exact Name (on file with CA Secretary of State) FALCON COMMUNITY VENTURES I LIMITED PARTNERSHIP
New LP name
(3) proposed new lp name the new lp name: must end with: “limited partnership,” “lp,” or “lp.,” and may not contain “bank,” “
insurance,” “trust,” incorporated,” “inc.,” “corporation,” or “corp.”
New LP Addresses
(4) a. Street Address of Designated Office in CA City (no abbreviations) CA state Zip
b.
Mailing Address of LP, if different from 4a City (no abbreviations) state Zip
New Agent/Address for Service of Process (The agent must be a CA resident or
qualified 1505 corporation in CA.)
(5) a. Corporation Service Company which will do business in California as CSC-Lawyers Incorporating Service Agent’s Name
b. Agent’s Street Address (if agent is not a corporation) City (no abbreviations) CA state Zip
General Partner Changes
(6) a. New general partner: Name Address City (no
abbreviations) state Zip
b. Address change: Name New Address City (no abbreviations) state Zip
c. Name change: Old name: new name:
d. Name of dissociated general partner:
Dissolved LP (Either check box a or check box b and complete the information. Note: To terminate the LP, also file a certificate of Cancellation (Form LP-4/7), available
at www.sos.ca.gov/business/be/forms.htm.)
(7) a. The LP is dissolved and wrapping up its affairs.
b. The LP is dissolved and has no general partners. The Following person has been appointed to wrap up the affairs of the LP: Name Address City (no abbreviations) state Zip
Read and sign below: This form must be signed by
(1) at least one general
partner,
(2) by each person listed in item 6a; and
(3) by each person listed
in item 6d if that person has not filed a Certificate of Dissociation (Form LP-101). If item 7b is checked, the person listed must sign. If a trust, association, attorney-in-fact, or any other person not listed above is signing, go to
www.sos.ca.gov/business/be/filing-tips.htm for more information. If you need more space, attach extra pages that are 1-sided and on standard letter-sized paper (8
1
⁄
2
” × 11”). All attachments are part of this amendment. Signing this document affirms under penalty of perjury that the stated facts are
true.
DANIEL J. BOLLINGER, VP, GENERAL COUNSEL, ASST.
SECRETARY OF CHARTER
COMMUNICATIONS, INC., MEMBER OF
FALCON CABLE COMMUNICATIONS, LLC, GENERAL PARTNER
Sign here Print your name here Date 02/10/2016
Sign here Print your name here Date
Make check/money order payable to: Secretary of State
Upon filing, we will return one (1)
uncertified copy of your filed document for free, and will certify the copy upon request and payment of a $5 certification fee.
By Mail Secretary of
State Business Entitles, P.O. Box 944225 Sacramento, CA 94244-2250
Drop-off Secretary of State 1500 11th Street, 3rd Floor Sacramento, Ca 95814
Corporaitions Code §1590202
LP-2 (REV 01/2013)
2013 california Secretary of State
www.sos.ca.gov/business/be
Exhibit 3.254
SIXTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
FALCON COMMUNITY
VENTURES I LIMITED PARTNERSHIP
(a California Limited Partnership)
This SIXTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON COMMUNITY VENTURES I LIMITED PARTNERSHIP (this
“
Agreement
”), is entered into as of July 1,
2001 by and between FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company (“
FCC
”) as the general partner (the “
General Partner
”),
and FALCON COMMUNITY CABLE, L.P., a Delaware limited partnership (“
Community Cable
”) as the limited partner, (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of FALCON COMMUNITY
VENTURES I LIMITED PARTNERSHIP (the “
Partnership
”).
W I T N E S S E T H:
WHEREAS, FCC and Community Cable were parties to that certain FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON COMMUNITY
VENTURES I LIMITED PARTNERSHIP dated as of May 24, 2001 (the “
Prior Agreement
”) pursuant to which FCC held a .7620% general partner interest in the Partnership and Community Cable held a 1% general partner interest and a 98.2380%
limited partner interest in the Partnership;
WHEREAS, FCC and Community Cable are all of the Partners of the Partnership and desire to
amend and restate the Prior Agreement to recharacterize the partnership interest held by Community Cable such that Community Cable will hold a 99.2380% limited partner interest in the Partnership.
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a) Effective as of the date and time of filing of the Certificate of Limited Partnership (the “
Certificate
”) in the office of
the California Secretary of State, the Partnership was formed as a limited partnership under the California Revised Limited Partnership Act (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Partners
in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be “Falcon Community Ventures I Limited
Partnership.” The business of the Partnership shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of California as required by the Act. The
registered agent shall be as stated in the Certificate or as otherwise determined by the General Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite 400, St. Louis, MO 63131. At any time, the
General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership
commenced on the date of the filing of the Certificate in the office of the California Secretary of State, and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The execution of the Certificate of Formation and the filing thereof in the office of the California Secretary of State, are
hereby ratified, confirmed and approved by the Partners.
(g) The General Partner(s) shall cause the Partnership
to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is
required or desirable. The General Partner(s), as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the
Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION
2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be conducted by the Partnership is, engaging in any lawful act or activity for which limited
partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of
its purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management.
(a)
Management
by
General
Partner(s).
Each person or entity shown on
Schedule
A
as holding a General Partner interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times
be exercised by or under the authority of, and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
- 2 -
The General Partner(s) shall be authorized to elect, remove or replace directors and
officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner(s) in the resolution or
resolutions pursuant to which such directors or officers were elected.
Except as otherwise required by applicable law,
each General Partner shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf
of the Partnership.
No annual or regular meetings of the General Partner(s) or the Partners are required. The General
Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to
manage the business of the Partnership to a Board of Directors (the
“Board”)
which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful
acts and things as may be done by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The
rights and duties of the members of the Board may not be assigned or delegated to any person or entity.
ii) Except as
otherwise provided herein, members of the Board shall possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on
directors of a corporation organized under the laws of the State of California.
iii) The number of directors shall
initially be one (1), which number may be changed from time to time by the General Partner(s). The initial director shall be Jerald L. Kent.
iv) Each director shall be appointed by the General Partner(s) and shall serve in such capacity until the earlier of his
or resignation or removal or replacement by the General Partner(s).
v) No director shall be entitled to any compensation for
serving as a director. No fee shall be paid to any director for attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in
such attendance.
- 3 -
(c)
Consent Required.
The affirmative vote, approval, consent or ratification
of the General Partner(s) shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any person or admit such person as a Partner;
iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner(s);
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another entity;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in the Partners or in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
x)
possess any Partnership property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi) operate the Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment
Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or
services from any person who is a director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or
any affiliate of any Partner, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
xiv) materially change any of the tax reporting positions or elections of the Partnership;
xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed
the Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
- 4 -
xvi) make or incur any secured or unsecured indebtedness which individually or in the
aggregate exceeds Five Million Dollars ($5,000,000), provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any
indebtedness to (or guarantee of indebtedness of) any company controlled by or under common control with the Partnership (
“Intercompany Indebtedness”
), (iii) the pledge of any assets to support any otherwise
permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner(s).
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such
place as shall from time to time be determined by the Board, but not less often than annually.
ii)
Special
Meetings.
Special meetings of the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written request of Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting
of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section
4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of
Section 4(c), at all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors
present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties
to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise
- 5 -
under similar circumstances, in the manner it reasonably believes to be in the best interests of
the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within the scope of authority conferred
by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including
a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold office at the pleasure of
the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the General Partner(s) or the
President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and
resolutions of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the
General Partner(s) to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no
Chairman, the most senior available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to
all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as
shall be assigned to him or her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General
Partner(s) or the President to the contrary, the any Senior Vice President shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
- 6 -
iii)
The Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as the Board may direct, a book of
minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at
directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the
General Partner(s) or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of the
Partnership funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable
effects of the Partnership in the name and to the credit of the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the
General Partner(s) or the Board.
SECTION 6.
Partners.
(a) The Partners of the Partnership shall be set forth on
Schedule
A
hereto. Other persons or entities may
be admitted as Partners from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall
be liable for the debts, liabilities and obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be
expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever. Except as
otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect ownership
interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Percentage Interests.
The Partners or their predecessors-in-interest have heretofore made the capital
contributions described in the Prior Agreement. The Percentage Interests or number of partnership units held by each Partner are as set forth in
Schedule A
attached hereto.
SECTION 8.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash
and other assets as shall be determined by the General Partner(s). Each such distribution, including liquidating distributions, shall be divided among the Partners in accordance with their Percentage Interests.
- 7 -
SECTION 9.
Allocations.
(a) Subject to Section 9(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number
of partnership units (as set forth in
Schedule A
).
(b) All allocations of Partnership income, gain, loss,
deductions, and other items shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to
satisfy the alternate test for economic effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a
Partner’s capital account (in excess of any limited dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in
determining the extent to which this clause (i) is satisfied, such Partner’s capital account shall be reduced for the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and
otherwise adjusted as provided in the Regulations related thereto), and (ii) a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and
manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the preceding sentence (the “
Regulatory Allocations
”) are intended to comply with certain requirements of
the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of
Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 9 (other than the Regulatory Allocations), the General Partner(s) shall make such offsetting special allocations of
Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account balance is, to the extent possible, equal to the capital account
balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 9(a).
SECTION 10.
Dissolution; Winding Up.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the Partners or (ii) the occurrence of any event
required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of the
date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its
business and affairs as soon as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately
- 8 -
commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and
the Act. In winding up the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not
limited to, any actions relating to (i) causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the
Partnership, (ii) the payment, settlement or compromise of existing claims against the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or
disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims
against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to
any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 11 shall not restrict the ability of any Partner to transfer (at any time) all or a
portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General Partner(s) shall provide notice of such transfer
to each of the other Partners and shall amend
Schedule
A
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished by the amendment of this Agreement.
SECTION 13.
Tax Matters.
The Partners agree that it is intended that the Partnership shall be treated as a
partnership for purposes of United States federal, state and local income tax laws, and further agree not to take any position or make any election, in a tax return or otherwise, inconsistent therewith. The “Tax
Matters Partner” of the Partnership for purposes of section 6231(a)(7) of the Internal Revenue Code of 1986, as amended, shall be FCC. The Tax Matters Partner shall have the power to manage and control, on
behalf of the Partnership, any administrative proceeding at the Partnership level with the Internal Revenue Service relating to the determination of any item of Partnership income, gain, loss, deduction or credit for
federal income tax purposes.
SECTION 14.
Exculpation and Indemnification.
(a) Neither the Partners, the General Partner(s), the directors, their affiliates, nor any person who at any time shall serve, or shall
have served, as a director, officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a
“
Specified Agent
”) shall be liable, in damages or otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their
affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the
Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the
Partnership for return of
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his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts and liabilities of the Partnership is insufficient to return such
investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein; provided, however, that the foregoing shall not relieve any Partner of any fiduciary duty or
duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim,
action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities
on behalf of the Partnership, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership,
the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably
incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith,
willful misconduct, or fraud. Any act or omission by any Partner, any of such Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with
reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption
that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d) Any such indemnification under this Section 14 shall be recoverable only out of the assets of the Partnership and not from the
Partners.
SECTION 15.
Miscellaneous.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an
action on behalf of the Partnership prior to such person’s or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective
date or time of such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the
General Partner(s) may approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
- 10 -
(d) This Agreement shall be binding upon and inure to the benefit of the Partners
and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of
the State of California, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the
invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- 11 -
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first
written above.
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CHARTER COMMUNICATIONS VII, LLC
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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FALCON CABLE COMMUNICATIONS, LLC
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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SCHEDULE A
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Partner Name
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Number and Type of Units
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Falcon Cable Communications, LLC
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.7620 general partner
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Falcon Community Cable, L.P.
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99.2380 limited partner
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Exhibit 3.255
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Falcon First Cable of the Southeast, LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this Certificate
shall be December 31, 2015 at 9:30 p.m. Eastern Time.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22nd day of
December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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Exhibit 3.256
LIMITED LIABILITY COMPANY AGREEMENT
OF
Falcon First Cable
of the Southeast, LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”)
is entered into as of
December 31, 2015 by Falcon First, LLC, a Delaware limited liability company (the
“
Member
”),
as the member of Falcon First Cable of the Southeast, LLC, a Delaware limited liability company (the
“
Company
”).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“
Manager
”)
desires to form a limited liability company under the
laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the
Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”). Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Falcon First Cable of the Southeast, LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the
“
Member
”;
or if there are more than one, the
“
Members
”)
shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”)
for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s
execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
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(a)
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Management by Manager.
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i) The Member hereby elects Charter Communications, Inc., a
Delaware corporation
(“
CCI
”),
or its successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“
Manager
”).
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company
(“
Intercompany Indebtedness
”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B,
in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a
“
Specified Agent
”)
shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against
such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of
authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge
of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the
provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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FALCON FIRST CABLE OF THE SOUHTEAST, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
|
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Senior Vice President – Finance and Corporate Treasurer
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MEMBER
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FALCON FIRST, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 1 of 2
Falcon First Cable of the Southeast, LLC
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 2 of 2
Falcon First Cable of the Southeast, LLC
EXHIBIT A
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Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic
Interest
Percentage
|
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Falcon First, LLC
|
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|
100
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%
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Exhibit 3.257
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Falcon First, LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this Certificate
shall be December 31, 2015 at 9:00 p.m. Eastern Time.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22
nd
day of December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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Exhibit 3.258
LIMITED LIABILITY COMPANY AGREEMENT
OF
Falcon First, LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”)
is entered into as of
December 31, 2015 by Robin Media Group, LLC, a Delaware limited liability company (the
“
Member
”),
as the member of Falcon First, LLC, a Delaware limited liability company (the
“
Company
”).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“
Manager
”)
desires to form a limited liability company under the
laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the
Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”).
Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Falcon First, LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service
of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the
“
Member
”;
or if there are more than one, the
“
Members
”)
shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”)
for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s
execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation
(“
CCI
”),
or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“
Manager
”).
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company
(“
Intercompany Indebtedness
”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
8
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded
entity for United States federal tax purposes. So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be disregarded as an entity separate
from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a
partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for
appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the
officers of the Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such
capacity, shall engage, or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall
take any action against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this
Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and
within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining
after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the
provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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FALCON FIRST, LLC
By:
Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President - Finance and Corporate Treasurer
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MEMBER
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ROBIN MEDIA GROUP, LLC
By:
Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President - Finance and Corporate Treasurer
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Signature Page 1 of 2
Falcon First, LLC
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President - Finance and Corporate Treasurer
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Signature Page 2 of 2
Falcon First, LLC
EXHIBIT A
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Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic Interest
Percentage
|
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Robin Media Group, LLC
|
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100
|
%
|
Exhibit 3.259
4 STATE OF CALIFORNIA CERTIFICATE OF LIMITED PARTNERSHIPFORM LP-1 IMPORTANTRead instructions on back before completing this form
This Certificate is presented for filing pursuant to Chapter 3. Article 2. Section 15621, Californio Corporations Code.
1. NAME OF LIMITED
Falcon Telecable, a California limited partnership
2. STREET ADDRESS OF PRINCIPAL EXECUTIVE OFFICE
199 S. Los Robles Ave., #640* 3. CITY AND
STATE
Pasadena, CA 4. ZIP CODE
91101
S. STREET ADDRESS OF CALIFORNIA OFFICE IF EXECUTIVE OFFICE IN in ANOTHER STATE 6. CITY
CALIF
7. ZIP CODE
8. COMPLETE IF LIMITED PARTNERSHIP WAS FORMED PRIOR TO JULY 1. 1984 AND IS IN EXISTENCE ON DATE THIS CERTIFICATE IS EXECUTED
THE ORIGINAL LIMITED PARTNERSHIP CERTIFICATE WAS RECORDED ON IS WITH THE
RECORDED OF FILE OR
RECORDATION NUMBER
9. NAME AND ADDRESS OF ALL GENERAL PARTNERS SECOND PAGE OR NECESSARY
NAME Falcon Telecable Investors Group, a California limited partnership ADDRESS 199 south Los Robles, Suite 640
CITY Pasadena STATE CODE 91101
9A.
NAME
ADDRESS
CITY STATE ZIP CODE
9B.
NAME
ADDRESS
CITY STATE ZIP CODE
10. NAME AND ADDRESS OF AGENT FOR SERVICE OF ADDRESS
Mark Goldman, Esq. ADDRESS1801 Century Park East, Suite 2222 CITY LOS ANGELES
ZIP CODE 90067
11. TERM FOR WHICH THIS PARTNERSHIP IS TO EXIST
January 1, 1997 unless
previously terminated
executive officer Of general, partner DATE
GENERAL OF
PARTNER DATE
GENERAL TITLE DATE
DEC AW WE ARE. THE PERSONS. WHO EXECUTED THIS
CERTIFICATE OF LIMITED PARTNERSHIP WHICH ER.
BLECABLE INVESTORS GROUP,
Ronald
M. Boldt, Esq. I
Schiffmacher, Weinstein,
Boldt 6 Racine 1801 Century Park
East, 42200 Los Angeles, CA 90067
OCT 27 1986
2015 California Secretary
of State
* OF CALIFORNIA
FU
SECRETARY of STATE
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
IMPORTANTRead instructions on back before completing this form THIS Certificate Is PRESENTED for filing pursuant to Section 15622, California corporations CODE.
1. SECRETARY Of STATE FILE NO. (ORIGINAL CERTIFICATEFOrM LP-1)
8630000013
2. NAME OF LIMITED PARTNERSHIP
Falcon Telecable, a California limited partnership
3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS; (COMPLETE APPROPRIATE SUB-SECTION(S) CONTINUE ON SECOND PAGE. IF NECESSARY).
A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO:
B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE:
address: 10866 Wilshire Blvd., Suite 500 CITY Los Angeles state: CA zip code: 90024
E. GENERAL PARTNER NAME CHANGE:
OLD NAME- NEW NAME:
C. CALIFORNIA OFFICE ADDRESS CHANGE:
F. GENERAL PARTNERS) WITHDRAWN:
NAME:
NAME:
D. GENERAL PARTNER ADDRESS CHANGE:
name: Falcon Telecable Investors Group CALIFORNIA ADDRESS:
10866 Wilshire Blvd., Suite 500
H. INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME: ***
CITY:
L. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND FILE CERTIFICATES OF
AMENDMENT. DISSOLUTION. CON- T1NUATION AND CANCELLATION IS CHANGED TO:
J. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED PARTNERSHIP ARE AMENDED AS
INDICATED ON THE ATTACHED
PAGE(S).
NUMBER OF PAGES ATTACHED:
4. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO
THE
IDENTIFIED
THIS SPACE FOR FILING OFFICER USE
8630000013
By Michael K. Menerey General Partner M. Boldt, Esq. 1801 Century Park East Suite 2200 Los Angeles, CA. 90067
SIGNATURE
POSITION OR TITLE
FILED
IN THE OFFICE OF THE
DEC 141990
MARCH FONG EU SECRETARY Of STATE S. RETURN ACKNOWLEDGEMENT TO:
DATE
POSITION on TITLE
DATS
SIGNATURE
SIGNATURE
POSITION OR TITLE
DATE
POSITION on TITLE
BATE
1. SECRETARY OF STATE FILE NO. (ORIGINAL CERTIFICATEFORU LfM)
8630000013
State of California
harch hong fu
secretary of state
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
IMPORTANTRead instructions on back before
completing this form This Certificate Is presented for filing pursuant to Section 15622, California Corporations Code.
2. NAME OF LIMITED PARTNERSHIP
FALCON TELECABLE, a California limited partnership
3. THE CERTIFICATE OF LIMITED PARTNERSHIP
IS AMENDED AS FOLLOWS: (COMPLETE APPROPRIATE SUB-SECTION(S) CONTINUE ON second PAGE. IF NECESSARY).
A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO:
B, PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: ADDRESS:
CITY: STATE: ZIP CODE: E. GENERAL
PARTNER NAME CHANGE:
OLD NAME:
NEW NAME:
C. CALIFORNIA OFFICE ADDRESS CHANGE:
ADDRESS:
CITY: STATE: CA ZIP CODE F. GENERAL PAHTNER(S) WITHDRAWN:
NAME:
NAME:
D. GENERAL PARTNER ADDRESS CHANGE:
NAME:
ADDRESS:
CITY: STATE: ZIP CODE: G. GENERAL PARTNER ADDED:
NAME:
ADDRESS:
CITY: STATE: ZIP CODE:
H. INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO:
NAME:
SIGNATURE DATE POSITION OR TITLE POSITION OR TITLE
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE
of THE STATE OF CALIFORNIA
DEC 05 1991
MARCH FONG EU SECRETARY Of STATE
(PLEASE INDICATE NUMBER ONLY)
ADDRESS:
L THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND FILE CERTIFICATES OF
AMENDMENT. DISSOLUTION. CON¬TINUATION AND CANCELLATION IS CHANGED TO:
J. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED PARTNERSHIP ARE AMENDED AS
INDICATED ON THE ATTACHED PAGEfSJ.
NUMBER OF PAGES ATTACHED:
(PLEASE INDICATE
NUMBER ONLY)
4. IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP. WHICH
EXECUTION IS MY (OUR) ACT AND DEED. (SEE INSTRUCTIONS
IT’S GENERAL PARTNER
MICHAL K. MENEREY ,POSITION
FALCON TELECAELE INVESTORS GROUP FALCON HOLDING
GROUP, INC.,
FALCON TELECABLE
File No. 8630000013
Attachment to
LP-2
The term for which the Partnership is to exist has been changed to March 31, 2001.
t. SECRETARY OF STATE FILE NO. (ORIGINAL CERTIFICATE FORM LP-1)
8630000013
PLEASE INDICATE NUMBER ONLY
B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE:
address: 10900 Wilshire Blvd., Fifteenth Floor
city: Los Angeles state: CA zip code: 90024 E. GENERAL PARTNER NAME CHANGE:
OLD NAME:
NEW NAME:
C- CALIFORNIA OFFICE ADDRESS CHANGE:
ADDRESS:
CITY: STATE: CA ZIP CODE: F. GENERAL PARTNER(S) WITHDRAWN:
NAME:
NAME:
D. GENERAL PARTNER ADDRESS CHANGE:
Falcon Telecable Investors Group, a name: California
limited partnership
address: 10900 Wilshire Blvd., Fifteenth Floor
Los
Angeles state: CA zip code: 90024 G. GENERAL PARTNER ADDED:
NAME:
ADDRESS:
CITY: STATE: ZIP CODE:
H. INFORMATION CONCERNING THE AGENT FOR SERVICE OF
PROCESS HAS BEEN CHANGED TO:
STATE OF CALIFORNIA
HARCH HONG FU
SECRETARY of STATE
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
IMPORTANTRead Instructions on back before completing this form This Certificate Is presented for filing pursuant to Section 15622, California Corporations Code.
2. NAME OF LIMITED PARTNERSHIP
Falcon Telecable, a California limited partnership
3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: (COMPLETE APPROPRIATE SUB-SECTI0N(S) CONTINUE ON SECOND PAGE. IF NECESSARY).
A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO:
DEED. (SEE INSTRUCTIONS)
Falcon Telecable Investors Group,
a California limited partnership
BY: FALCON Holding Group, a
CalifoNia_corporation
SIGNATURE Michael K. MENEREY Chief Financial Officer
5. RETURN ACKNOWLEDGEMENT TO:
NAME RONALD M. Boldt, Esq.
ADDRESS Schiffmacher, Weinstein, Boldt & Racine CITY 1801
Century Park East, Suite 2200 STATE Los Angeles, CA 90067-2336
ZIP CODE
FILED
IN THE OFFICE OF THE SECRETARY OF THE STATE OF SEP 17 1992
MARCH FONG EU
SECRETARY OF STATE
State of California SECRETARY OF STATE AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANTRead instructions on back before
completing this form This Certificate is presented for filing pursuant to Section 15622, California Corporations Code. 1. SECRETARY OF STATE RLE NO (ORIGINAL CERTIFICATEFORM LP-1) 8630000013 2. NAME OF LIMITED PARTNERSHIP Falcon Telecable, a
California Limited Partnership 3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECtlON(S) CONTINUE ON SECOND PAGE. IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: B. PRINCIPAL EXECUTIVE OFFICE
ADDRESS CHANGE: ADDRESS: CITY. STATE ZIP CODE; E. GENERAL PARTNER NAME CHANGE. OLD NAME: NEW NAME: C. CALIFORNIA OFFICE ADDRESS CHANGE: ADDRESS: CITY: STATE; CA ZIP CODE: F. GENERAL PASTNER(S) WITHDRAWN: NAME: NAME: D. GENERAL PARTNER ADDRESS
CHANGE: NAME: ADDRESS: CITY: STATE: ZIPCOOE G. GENERAL PARTNER ADDED: NAME: Falcon Holding Group, L.P. ADDRESS. 10900 Wilshire Boulevard, 15th Floor CITY: LOS Angeles STATE CA ZIP CODE 90024 H. PERSON(S) WINDING UP AFFAIRS OF LIMITED PARTNERSHIP:
NAME. ADDRESS. CITY- STATE ZIP CODE: L INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME BLED IN THE OFFICE OF THE SECRETARY of STATE State of COLIFORNIA APR 01 1993 MARCH FONG Eli SECRETARY OF STATE ADDRESS: CITY:
STATE CA ZIP COOE J. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND FILE CERTIFICATES OF AMENDMENT. RESTATEMENT. DISSOLUTION. CONTINUATION. CANCELLATION AND MERGER IS CHANGED TO: (PLEASE INDICATE NUMBER ONLY) K. OTHER MATTERS TO BE
INCLUDED IN THE CERTIFICATE OF LIMETED PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGES) NUMBER OF PAGES ATTACHED: 1. IT IS HERESY DECLARED THAT I AM WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF
LIMITED PARTNERSHIP. WHICH EXECUTION IS MY (OUR) ACT AND DEED. (SEE INSTRUCTIONS) [.Group, By: Falcon Holding Group, L.I By: Falcon Holding Group, By: Falcon.Telecable Investors.G A California Limited Partnership BY: Falcon- Holding.-GrOUP POSITION
OR TITLE DATE Stanley S. Itskowitch Executive Vice President RETURN ACKNOWLEDGMENT TO: Sara J. Welch Dow, Lohnes & Albertson 1255 23rd Street, N. W., Suite 500 Washington, D. C. 20037
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP
IMPORTANT Read Instructions on back before completing this form This Certificate Is presented for filing pursuant to Section 15622, California Corporations Code.
1. SECRETARY OF STATE FILE NO.
(ORIGINAL CERTIFICATE-FORM LP-1)
8630000013
2. NAME OF LIMITED PARTNERSHIP
Falcon Telecable, A California Limited Partnership
1 THIS CERTIFICATE OF LIMITED PARTNERSHIP
IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECT10N(S] CONTINUE ON SECOND PAGE IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO:
PRINCIPAL
EXECUTIVE OFFICE ADDRESS CHANGE:
ADDRESS:
CITY: STATE: ZIP CODE:
By; Falcon Holding Group, Inc.
SIGNATURE
C. CALIFORNIA OFFICE ADDRESS CHANGE ADDRESS:
CITY: STATE: CA
In the office of the Secretary OF STATE of the State of California
JUL - 2 1998
BILL JONES. Secretary of State
D. GENERAL PARTNER ADDRESS CHANGE NAME AODRESS:
CITY: STATE
FORM LP-2-RUNG FEE $30.00 Anaravad BY SECRETARY OF STATE
H. PERSON(S). WINDING UP AFFAIRS OF UMITED PARTNERSHIP:
NAME
ADDRESS:
CITY:
J. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND RLE CERTTIFICATES OF AMENDMENT. RESTATEMENT. DISSOLUTION. CONTINUATION. CANCELLATION AND MERGER IS CHANGED TO:
E. GENERAL PARTNER NAME CHANGE OLD NAME:
NEW NAME:
F. GENERAL PARTNER[S) WITHDRAWN: NAME
NAME
IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED
G. GENERAL PARTNER ADDED: NAME ADDRESS:
CITY:
NUMBER OF PAGES ATTACHED: -1-
L INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS
BEEN CHANGED TO:
NAME:
ADDRESS:
CITY: STATE ZIP CODE
5. RETURN ACKNOWLEDGEMENT TO:
POSITION OR TITLE S. Itskowitch Executive Vice President
SIGNATURE
Ronald M. Boldt, Esq. Weinstein, Boldt, et al.
1801 Century Park East, #2200 Los Angeles, CA
90067-2336
POSITION OR TITLE S. Itskowitch Executive Vice President
SIGNATURE
POSITION OR TITLE DATE
Stanley S. Itskowitch, Executive Vice President
SIGNATURE
K. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED
PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGE(S).
(PLEASE
INDICATE NUMBER ONLY]
FALCON TELECABLE
File No. 8630000013
Attachment to
LP-2
On March 29, 1993, the term of the Partnership was extended to January 1, 2015.
STATE OF CALIFORNIA Form LP-2 HARCH HONG FU SECRETARY of STATE AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT——Read
Instructions on back before completing this form This Certificate Is presented for filing pursuant to Section 15622, California Corporations Code. 2. NAME OF LIMITED PARTNERSHIP Falcon Telecable, a California limited partnership 3. THE CERTIFICATE
OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: (COMPLETE APPROPRIATE SUB-SECTI0N(S) CONTINUE ON SECOND PAGE. IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: B. PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: address: 10900 Wilshire Blvd.,
Fifteenth Floor city: Los Angeles state: CA zip code: 90024 E. GENERAL PARTNER NAME CHANGE: OLD NAME: NEW NAME: C- CALIFORNIA OFFICE ADDRESS CHANGE: ADDRESS: CITY: STATE: CA ZIP CODE: F. GENERAL PARTNER(S) WITHDRAWN: NAME: NAME: D. GENERAL PARTNER
ADDRESS CHANGE: Falcon Telecable Investors Group, a name: California limited partnership address: 10900 Wilshire Blvd., Fifteenth Floor Los Angeles state: ca zip code: 90024 G. GENERAL PARTNER ADDED: NAME: ADDRESS: CITY: STATE: ZIP CODE: H.
INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: L THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND FILE CERTIFICATES OF AMENDMENT. DISSOLUTION. CONTINUATION AND CANCELLATION IS CHANGED TO: J. OTHER MATTERS TO
BE INCLUDED IN TOE CERTIFICATE OF LIMITED PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGE(S). NUMBER OF PAGES ATTACHED: (PLEASE INDICATE NUMBER ONLY). A. IT IS HEREBY DECLARED THAT I AM (WE ARE THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO
THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP. WHICH EXECUTION IS MY (OUR) ACT AND THIS SPACE FOR FILING OFFICER USE 8630000013 DEED. (SEE INSTRUCTIONS) Falcon Telecable Investors Group, a California limited partnership BY: FALCON Holding Group,
a CalifoNia_corporation POSITION OR TITLE General PARTNER BY: DATE POSITION OR TITLE SIGNATURE Michael k. MENEREY Chief Financial Officer 5. RETURN ACKNOWLEDGEMENT TO: name RONALD M. Boldt, Esq. address Schiffmacher, Weinstein, Boldt & Racine
CITY 1801 Century Park East, Suite 2200 state Los Angeles, CA 90067-2336 ZIP CODE DATE FILED IN THE OFFICE OF THE SECRETARY OF THE STATE OF SEP 17 1992 MARCH FONG EU SECRETARY OF STATE
State of California SECRETARY OF STATE AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT——Read instructions on back
before completing this form This Certificate is presented for filing pursuant to Section 15622, California Corporations Code. 1. SECRETARY OF STATE RLE NO (ORIGINAL CERTIFICATE——FORM LP-1) 8630000013 2. NAME OF LIMITED PARTNERSHIP Falcon
Telecable, a California Limited Partnership 3. THE CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECtlON(S) CONTINUE ON SECOND PAGE. IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: B. PRINCIPAL
EXECUTIVE OFFICE ADDRESS CHANGE: ADDRESS: CITY. STATE ZIP CODE; E. GENERAL PARTNER NAME CHANGE. OLD NAME: NEW NAME: C. CALIFORNIA OFFICE ADDRESS CHANGE: ADDRESS: CITY: STATE; CA ZIP CODE: F. GENERAL PASTNER(S) WITHDRAWN: NAME: NAME: D. GENERAL
PARTNER ADDRESS CHANGE: NAME: ADDRESS: CITY: STATE: ZIPCOOE G. GENERAL PARTNER ADDED: name: Falcon Holding Group, L.P. address. 10900 Wilshire Boulevard, 15th Floor CITY: LOS Angeles state CA zip code 90024 H. PERSON(S) WINDING UP AFFAIRS OF LIMITED
PARTNERSHIP: NAME. ADDRESS. CITY- STATE ZIP CODE: L INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME ADDRESS: CITY: STATE CA ZIP COOE J. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND FILE CERTIFICATES OF
AMENDMENT. RESTATEMENT. DISSOLUTION. CONTINUATION. CANCELLATION AND MERGER IS CHANGED TO: (PLEASE INDICATE NUMBER ONLY) K. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMETED PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGES) NUMBER
OF PAGES ATTACHED: 1. IT IS HERESY DECLARED THAT I AM WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED CERTIFICATE OF LIMITED PARTNERSHIP. WHICH EXECUTION IS MY (OUR) ACT AND DEED. (SEE INSTRUCTIONS) [.Group, By: Falcon Holding
Group, L.I By: Falcon Holding Group, THIS SPACE FOR FILING OFFICER USE By: Falcon.Telecable Investors.G A California Limited Partnership BY: Falcon- Holding.-GrOUP SIGNATURE BY: Falcon Holding-GROUP INC OR TITLE DATE POSITION OR TITLE DA POSITION
DATE OR TITLE Stanley S. Itskowitch Executive Vice President SIGNATURE POSITION OR TITLE DATE Stanley S. Itskowitch Executive Vice President RETURN ACKNOWLEDGMENT TO: Sara J. Welch Dow, Lohnes & Albertson 1255 23rd Street, N. W., Suite 500
Washington, D. C. 20037 date POSITION OR TITLE NAME ADDRESS CITY DATE BLED IN THE OFFICE OF THE SECRETARY of STATE State of COLIFORNIA APR 01 1993 MARCH FONG Eli SECRETARY OF STATE 5TATE CODE
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT—— Read Instructions on back before completing this form This
Certificate Is presented for filing pursuant to Section 15622, California Corporations Code. 1. SECRETARY OF STATE FILE NO. (ORIGINAL CERTIFICATE-FORM LP-1) 8630000013 2. NAME OF LIMITED PARTNERSHIP Falcon Telecable, A California Limited Partnership
1 THIS CERTIFICATE OF LIMITED PARTNERSHIP IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECT10N(S] CONTINUE ON SECOND PAGE IF NECESSARY). A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: PRINCIPAL EXECUTIVE OFFICE ADDRESS CHANGE: ADDRESS: CITY:
STATE: ZIP CODE: C. CALIFORNIA OFFICE ADDRESS CHANGE ADDRESS: CITY: STATE: CA D. GENERAL PARTNER ADDRESS CHANGE NAME AODRESS: CITY: STATE H. PERSON(S). WINDING UP AFFAIRS OF UMITED PARTNERSHIP: NAME ADDRESS: CITY: J. THE NUMBER OF GENERAL PARTNERS
REQUIRED TO ACKNOWLEDGE AND RLE CERTTIFICATES OF AMENDMENT. RESTATEMENT. DISSOLUTION. CONTINUATION. CANCELLATION AND MERGER IS CHANGED TO: ZIP CODE ZIP CODE ZIP CODE- E. GENERAL PARTNER NAME CHANGE OLD NAME: NEW NAME: F. GENERAL PARTNER[S)
WITHDRAWN: NAME NAME G. GENERAL PARTNER ADDED: NAME ADDRESS: CITY: L INFORMATION CONCERNING THE AGENT FOR SERVICE OF PROCESS HAS BEEN CHANGED TO: NAME: ADDRESS: CITY: STATE ZIP CODE STATE ZIP CODE K. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE
OF LIMITED PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGE(S). NUMBER OF PAGES ATTACHED: -1- (PLEASE INDICATE NUMBER ONLY] IT IS HEREBY DECLARED THAT I AM (WE ARE) THE PERSON(S) WHO EXECUTED THIS AMENDMENT TO THE IDENTIFIED By; Falcon
Holding Group, Inc. SIGNATURE Group, Inc. SIGNATURE THIS SPACE FOR RUNG OFFICER USE POSITION OR TITLE DATE Stanley S. Itskowitch, Executive Vice President SIGNATURE POSITION OR TITLE S. Itskowitch Executive Vice President SIGNATURE POSinON OR TITLE
DATE POSITION OR TITLE DATE In the office of the Secretary OF STATE of the State of California JUL - 2 1998 BILL JONES. Secretary of State 5. RETURN ACKNOWLEDGEMENT TO: NAME ADDRESS CITY STATE IIP CODE Ronald M. Boldt, Esq. Weinstein, Boldt, et al.
1801 Century Park East, #2200 Los Angeles, CA 90067-2336 FORM LP-2-RUNG FEE $30.00 Anaravad BY SECRETARY OF STATE
Form LP-2 SECRETARY OF STATE AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP IMPORTANT——READ instructions on back before
completing this form This Certificate is presented for filing pursuant to Section 16622, California Corporations Code. 2. NAME OF LIMITED PARTNERSHIP Falcon Telecable, a California Limited Partnership 1. SECRETARY Of STATE FILE NO. (ORIGINAL
CERTIFICATE- FORM LP-1) 8630000013 3 THE CERTIFICATE OF LMITED PARTNERSH1P IS AMENDED AS FOLLOWS: COMPLETE APPROPRIATE SUB-SECTION(S) (CONTINUE ON SECOND PAGE IF A. THE LIMITED PARTNERSHIP NAME IS CHANGED TO: 8 PRINICIPAL EXECUTIVE OFFICER ADDRESS
CHANGE: ADDRESS CITY: STATE- ZIP CODE; E. GENERAL PARTNER NAME CHANGE CHANGE: OLD NAME NEW NAME: C. CALIFORNIA OFFICE ADDRESS CHANGE: ADDRESS: CITY: STATE CA ZIP CODE: F. GENERAL PARTNER(S) WITHDRAWN: NAME: Falcon Holding Group, L.P. NAME D. GENERAL
PARTNER ADDRESS CHANGE: NAME- ADDRESS: CITY: STATE: ZIP CODE G. GENERAL PARTNER ADDED NAME: Falcon Cable Communications, LLC address: 10900 Wilshire Boulevard, 15th F1. CITY: Los Angeles STATE CA ZIP CODE 9002 H. PERSON(S) WINDING UP AFFAIRS OF
LIMITED PARTNERSHP: NAME: ADDRESS: CITY; STATE: ZIP CODE 1. INFORMATION CONCERN THE AGENT FOR SERVICE OF PROCESS HAS CHANGEDTO: NAME ADDRESS: CITY: STATE CA ZIP CODE J. THE NUMBER OF GENERAL PARTNERS REQUIRED TO ACKNOWLEDGE AND RLE CERTIFICATES OF
AMENDMENT, RESTATEMENT DISSOLUTION. CONTINUATION. CANCELLATION AND MERGER IS CHANGED TO: (PLEASE INDICATE NUMBER ONLY) K. OTHER MATTERS TO BE INCLUDED IN THE CERTIFICATE OF LIMITED PARTNERSHIP ARE AMENDED AS INDICATED ON THE ATTACHED PAGE(S] NUMBER
OFPAGES ATTACHED AN (WE ARE THE(S) WHOEXECUTEDTWSAMe«MEHrTOTHE!OemHBJCeRnnCATE OF UMITEDPaRTNERM P. WV*CH EXECUTION IS MY tOUfi ACT ANO DEED. (SffilNSTPUCTONS) FALCON CABLE COMMUNICATIONS. LLC THISSPACE TOR RUNG OPRCS? USE
State of California Secretary of State Bill Dones In the office of the Secretary of State of the State of Calffomia OCT 25 2001 Bill
JONES, Secretary of Ststf AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP A $30.00 filing fee must accompany this form. IMPORTANT—— Read instructions before completing this form. 1. SECRETARYOF STATE HUE NUMBER 863000QQL3 - NAME OF LIMHED
PARTNERSHIP . . . . Falcon Telecable, A California Limited Partnership 3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY. A. LIMITED PARTNERSHIP NAME (END THE NAME WITH THE WORDS
“LIMITED PARTNERSHIP’ OR THE ABBREVIATION *LP’) a. THE STREET ADDRESS OF THE PRINCIPAL OFFICE address 12444 Power scour t Drive, Suite 100 crrr St. Louis state MO C.” THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS ARE KEPT STREET
ADDRESS CITY D. THE ADDRESS OF GENERAL PARTNER® NAME address 12444 Power scour t Drive, Suite 100 CITY St. Louis- STATE state CA E. NAME CHANGE OF A GENERAL PARTNER FROM: & GENERAL PARTNER ADDED NAME ADDRESS CITY H. THE PERSONAS) AUTHORIZED
TO WIND UP AFFAIRS OF THE LIMITED PARTNERSHIP NAME ADDRESS CfTY STATE STATE L THE NAME OF THE AGENT FOR SERVICE OF PROCESS GKL Corporate/Search. Inc. J1 IF AN INDIVID ADDRESS _£M_ OF THE AGENT FOR SERVICE OF PROCESS 63131 ZIP CODE ZIP CODE TO:
. K. NUMBER OF GENERAL PARTNERS* SIGNATURES REQUIRED FOR FILING CERTIFICATES OF AMENDMENT, RESTATEMENT, MERGER, DISSOLUTION, CONTINUATION AND CANCELLATION. [ 1 L. OTHER MATTERS (ATTACH ADDITIONAL PAGES, IF NECESSARY). 4. TOTAL NUMBER OF PAGES
ATTACHED (IF ANY) 5. I CERTIFY THAT THE STATEMENTS CONTAINED IN THIS DOCUMENT ARE TRUE AND CORRECTTO MY OWN KNOWLEDGE. I DECLARE THAT I AM THE PERSON WHO IS EXECUTING THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED. jpSalaxi Cable Connxdrations,
CITY: , Vice President FORM LP-2-FILING FEE $30.00 Approved by Secretary of Stats Marcy Lifton, October 11, 2001 Charter Commuications VII, LLC – G.P. DATE
State of California ffiQM Kevin Shelley Secretary of State FILED In the office of (he Secretary of State of the Slate of California
AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP A $30.00 filing fee must accompany this form. IMPORTANT - Read Instructions before completing this form MAY o 6 2004 7 KEVIN SHELLEY, 8ECRETAgy OF STATE This Space For Filing Use Only 1. SECRETARY OF
STATE RLE NUMBER 198630000013 2. NAME OF UMITED PARTNERSHIP Falcon Telecable, a California Limited Partnership 3. COMPLETE ONLY THE BOXES WHERE INFORMATION IS BEING CHANGED. ADDITIONAL PAGES MAY BE ATTACHED, IF NECESSARY: A. UMITED PARTNERSHIP NAME
(END THE NAME WITH THE WORDS UMITED PARTNERSHIP* OR THE ABBREVIATION T-P.*) B. THE STREET ADDRESS OF PRINCIPAL EXECUTIVE OFFICE CITY AND STATE ZIP CODE C. THE STREET ADDRESS IN CALIFORNIA WHERE RECORDS ARE KEPT CfTY STATE ZIP CODE CA D. THE ADDRESS
OF THE GENERAL PARTNER(S) NAME ADDRESS CITY AND STATE ZIP CODE E. NAME CHANGE OF GENERAL PARTNER(S) FROM: TO: c CPUCD” r’\RTNFRfRir’J=RKATinN G. NAME OF GENERAL PARTNER(S) ADDED ADDRESS CITY AND STATE ZIP CODE H. THE PERSON(S)
AUTHORIZED TO WIND UP THE AFFAIRS OF THE LIMITED PARTNERSHIP NAME ADDRESS CITY AND STATE ZIP CODE i. the name of the agent for service of process Corporation Service Company which will do business in California as CSC-Lawyers Incorporating Service
J. ADDRESS OF AGENT FOR SERVICE OF PROCESS IN CALIFORNIA, IF AN INDIVIDUAL CITY STATE ZIP CODE CA K. NUMBER OF GENERAL PARTNERS’ SIGNATURES REQUIRED FOR FILING CERTIFICATES OF AMENDMENT. RESTATEMENT. MERGER, DISSOLUTION, CONTINUATION AND
CANCELLATION: L. OTHER MATTERS (ATTACH ADDITIONAL PAGES. IF NECESSARY): see attached letter 4. 1 DECLARE THAT 1 AM THE PERSON WHO EXECUTED THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED. Vice President of Charter Communications VII, Inc., its
general partner SIGNATURE OF AUTHORIZED PERSON POSITION OR TITLE OF AUTHORIZED PERSON Patricia M. Carroll April 13 , 2004 TYPE OR PRINT NAME OF AUTHORIZED PERSON DATE SIGNATURE OF AUTHORIZED PERSON POSITION OR TITLE OF AUTHORIZED PERSON TYPE OR
PRINT NAME OF AUTHORIZED PERSON DATE LP-2 (REV 12/2003) APPROVED BY SECRETARY OF STATE
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Patricia M. Carroll
Vice President and Assistant Secretary
Direct Dial: 314-543-2402
Fax:
314-965-6640
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April 5, 2004
California Secretary of State
Document Filing Support Unit
P O Box 944225
Sacramento, CA 94244-2250
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Re:
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Falcon Telecable, a California limited partnership
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Dear Sir or Madam:
Falcon Telecable, with the consent of its partners, does hereby amend the Certificate of the Limited Partnership to state that it will
continue to exist until and when it is dissolved by the partners.
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Sincerely,
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/s/ Patricia M. Carroll
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Patricia M. Carroll
Vice President
of
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Charter Communications, Inc., Manager of Charter Communications VII, LLC, G.P.
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Exhibit 3.260
SEVENTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
FALCON TELECABLE,
A CALIFORNIA LIMITED PARTNERSHIP
(a California Limited Partnership)
This SEVENTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON TELECABLE, A CALIFORNIA LIMITED PARTNERSHIP (this
“
Agreement
”), is entered into as of July 1, 2001 by and between CHARTER COMMUNICATIONS VII, LLC, a Delaware limited liability company (“
CC VII
”) as the general partner (the “
General Partner
”), and
FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company (“
FCC
”) as the limited partner, (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of FALCON TELECABLE,
A CALIFORNIA LIMITED PARTNERSHIP (the “
Partnership
”).
W I T N E S S E T H:
WHEREAS, CC VII and FCC were parties to that certain SIXTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON
TELECABLE, A CALIFORNIA LIMITED PARTNERSHIP dated as of May 25, 2001 (the “
Prior Agreement
”) pursuant to which CC VII held a 1% general partner interest in the Partnership and FCC held a 8.0983% general partner interest and a
90.9017% limited partner interest in the Partnership;
WHEREAS, CC VII and FCC are all of the Partners of the Partnership and desire to
amend and restate the Prior Agreement to recharacterize the partnership interest held by FCC such that FCC will hold a 99% limited partner interest in the Partnership.
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a) Effective as of the date and time of filing of the Certificate of Limited Partnership (the “
Certificate
”) in the office of
the California Secretary of State, the Partnership was formed as a limited partnership under the California Revised Limited Partnership Act (the “
Act
”). Except as expressly provided herein, the rights and obligations of the
Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be “Falcon Telecable, a California
Limited Partnership.” The business of the Partnership shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of California as required by the Act. The
registered agent shall be as stated in the Certificate or as otherwise determined by the General Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite 400, St. Louis, MO
63131. At any time, the General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the date of the filing of the Certificate in the office of the California Secretary of
State, and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The execution of the Certificate of Formation and the filing thereof in the office of the California Secretary of State, are
hereby ratified, confirmed and approved by the Partners.
(g) The General Partner(s) shall cause the Partnership
to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is
required or desirable. The General Partner(s), as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the
Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION
2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be conducted by the Partnership is, engaging in any lawful act or activity for which limited
partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of
its purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a
General Partner interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with
- 2 -
respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the authority of, and the business, property and affairs
of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The General
Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as
otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were elected.
Except as otherwise required by applicable law, each General Partner shall be authorized to execute or
endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
No annual or regular meetings of the General Partner(s) or the Partners are required. The General Partner(s) may, by written
consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business of the
Partnership to a Board of Directors (the
“Board”)
which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be done
by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the
members of the Board may not be assigned or delegated to any person or entity.
ii) Except as otherwise provided herein,
members of the Board shall possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation
organized under the laws of the State of California.
iii) The number of directors shall initially be one (1), which
number may be changed from time to time by the General Partner(s). The initial director shall be Jerald L. Kent.
iv) Each
director shall be appointed by the General Partner(s) and shall serve in such capacity until the earlier of his or resignation or removal or replacement by the General Partner(s).
v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for
attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
- 3 -
(c)
Consent Required.
The affirmative vote, approval, consent or ratification
of the General Partner(s) shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any person or admit such person as a Partner;
iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner(s);
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another entity;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in the Partners or in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
x)
possess any Partnership property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi) operate the Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment
Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or
services from any person who is a director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or
any affiliate of any Partner, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
xiv) materially change any of the tax reporting positions or elections of the Partnership;
- 4 -
xv) make or commit to any expenditures which, individually or in the aggregate,
exceed or are reasonably expected to exceed the Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds
Five Million Dollars ($5,000,000), provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to
(or guarantee of indebtedness of) any company controlled by or under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness
of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner(s).
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such
place as shall from time to time be determined by the Board, but not less often than annually.
ii)
Special
Meetings.
Special meetings of the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written request of Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting
of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section
4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of
Section 4(c), at all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors
present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
- 5 -
(e)
Board’s Duty of Care.
The Board’s duty of care
in the discharge of its duties to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the
manner it reasonably believes to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed
in good faith to be within the scope of authority conferred by this Agreement or approved by the General Partner(s).
SECTION
5. Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other
additional officers, including a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by
the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold
office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the
General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and
resolutions of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the
General Partner(s) to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no
Chairman, the most senior available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to
all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as
shall be assigned to him or her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the
- 6 -
Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary, the any Senior Vice President shall have the power to
vote all securities held by the Partnership and to issue proxies therefor.
iii)
The Secretary.
The Secretary
shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as
the Board may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to
time by the General Partner(s) or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of
the Partnership funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other
valuable effects of the Partnership in the name and to the credit of the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the
General Partner(s) or the Board.
SECTION 6.
Partners.
(a) The Partners of the Partnership shall be set forth on
Exhibit
A
hereto. Other persons or entities may
be admitted as Partners from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall
be liable for the debts, liabilities and obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be
expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever. Except as
otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect ownership
interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Percentage Interests.
The Partners or their predecessors-in-interest have heretofore made the capital
contributions described in the Prior Agreement. The Percentage Interests or number of partnership units held by each Partner are as set forth in
Schedule A
attached hereto.
SECTION 8.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash
and other assets as shall be determined by the General Partner(s). Each such distribution, including liquidating distributions, shall be divided among the Partners in accordance with their Percentage Interests.
- 7 -
SECTION 9.
Allocations.
(a) Subject to Section 9(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number
of partnership units (as set forth in
Schedule A
).
(b) All allocations of Partnership income, gain, loss, deductions, and other
items shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for
economic effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of any
limited dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which this clause (i) is
satisfied, such Partner’s capital account shall be reduced for the items described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted
as provided in the Regulations related thereto), and (ii) a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
)
shall be allocated items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as
possible. The limitations and allocations described in the preceding sentence (the
“Regulatory Allocations”
)
are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the
Partners that to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any
other provisions of this Section 9 (other than the Regulatory Allocations), the General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that,
after such offsetting allocations are made, a Partner’s capital account balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all
Partnership items were allocated pursuant to Section 9(a).
SECTION 10.
Dissolution; Winding Up.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the Partners or (ii) the occurrence of any event
required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of the
date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
- 8 -
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the
purposes of winding up its business and affairs as soon as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the
Partnership in accordance with the provisions of this Agreement and the Act. In winding up the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion
to be in the best interests of the Partners, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed
to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against the Partnership, (iii) the making of reasonable provisions for payment of
contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a reasonable time shall be allowed for the
orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation,
mortgage, exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 11 shall not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of
a Partner’s partnership interest, the General Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule
A
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be
accomplished by the amendment of this Agreement.
SECTION 13.
Tax Matters.
The Partners agree that it is
intended that the Partnership shall be treated as a partnership for purposes of United States federal, state and local income tax laws, and further agree not to take any position or make any election, in a tax return or
otherwise, inconsistent therewith. The “Tax Matters Partner” of the Partnership for purposes of section 6231(a)(7) of the Internal Revenue Code of 1986, as amended, shall be CC VII. The Tax Matters Partner
shall have the power to manage and control, on behalf of the Partnership, any administrative proceeding at the Partnership level with the Internal Revenue Service relating to the determination of any item of Partnership
income, gain, loss, deduction or credit for federal income tax purposes.
SECTION 14.
Exculpation and
Indemnification.
(a) Neither the Partners, the General Partner(s), the directors, their affiliates, nor any person who at any
time shall serve, or shall have served, as a director, officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the
Partnership (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such
Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed
- 9 -
on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the
Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts and liabilities of the Partnership is
insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein; provided, however, that the foregoing shall not relieve any
Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened,
pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is
or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent
relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in
settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for
actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public
accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption
that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d) Any such indemnification under this Section 14 shall be recoverable only out of the assets of the Partnership and not from the
Partners.
SECTION 15.
Miscellaneous.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an
action on behalf of the Partnership prior to such person’s or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective
date or time of such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the
General Partner(s) may approve.
- 10 -
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and
assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of California,
without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(f)
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
- 11 -
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first
written above.
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CHARTER COMMUNICATIONS VII, LLC
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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FALCON CABLE COMMUNICATIONS, LLC
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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EXHIBIT A
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Partner Name
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Number and Type of Units
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Charter Communications VII, LLC
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1 general partner
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Falcon Cable Communications, LLC
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99 limited partner
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Exhibit 3.261
CERTIFICATE OF LIMITED PARTNERSHIP
OF
FALCON VIDEO COMMUNICATIONS,
L.P.
This Certificate of Limited Partnership of Falcon Video Communications, L.P., a Delaware limited partnership (the
“Partnership”), is made as of this 11
th
day of March 1992, by the undersigned, Falcon Video Communications Investors, L.P., a California limited partnership, for the purpose of forming a
limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act.
1.
Name
. The name of the Partnership is
Falcon Video Communications, L.P.
2.
Registered Office and Registered Agent
. The registered office of the Partnership in Delaware
shall be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The registered agent of the Partnership for service of process shall be The Corporation Trust Company
3.
General Partner
. The name of the sole general partner of the Partnership is Falcon Video Communications Investors, L.P., a
California limited partnership, the general partner of which is Falcon Holding Group, Inc., a California corporation, and the business address of which is as follows:
Falcon Video Communications Investors, L.P.
10866 Wilshire Boulevard
Suite
370
Los Angeles, California 90024
4.
Delaware Limited Partnership
. The Partnership is formed pursuant to the Delaware Revised Uniform Limited Partnership Act and the
other applicable laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership
of Falcon Video Communications, L.P. as of the day and year first above written.
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FALCON VIDEO COMMUNICATIONS INVESTORS, L.P.
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By:
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Falcon Holding Group, Inc., general partner
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By:
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/s/ Stanley S. Itskowitch
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Stanley S. Itskowitch
Executive Vice
President
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CERTIFICATE OF AMENDMENT
TO
THE CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON VIDEO
COMMUNICATIONS, L.P.
Falcon Video Communications, L.P., a limited partnership organized under the Delaware Revised Limited Partnership
Act (the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act,
hereby certifies that Paragraph 3 of the Certificate of Limited Partnership is amended to read in its
entirety as follows:
3.
General Partner
. The name and business address of the General Partner of the Partnership is as follows:
Falcon Video Communications Investors, L.P.
10900 Wilshire Blvd.
15th
Floor
Los Angeles, CA 90024
IN WITNESS WHEREOF, this Certificate of Amendment has been duly executed by the general partner as of the 1
st
day of December, 1992.
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Falcon Video Communications, L.P.
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By:
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Falcon Holding Group, Inc.,
as general
partner
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By:
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/s/ Stanley S. Itskowitch
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Stanley S. Itskowitch, Executive Vice President
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON VIDEO
COMMUNICATIONS, L.P.
Falcon Video Communications, L.P., a limited partnership organized under the Delaware Revised Limited Partnership
Act (the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 4 of the Certificate of Limited Partnership is amended to read in its entirety as
follows:
4.
General Partners
. The names and business addresses of each of the General Partners of the Partnership are as follows:
Falcon Video Communications Investors, L.P.
10900 Wilshire Boulevard
15th
Floor
Los Angeles, California 90024
Falcon Cable Communications, LLC
10900 Wilshire Boulevard
15th
Floor
Los Angeles, California 90024
IN WITNESS WHEREOF, this Certificate of Amendment has been duly executed by each general partner designated herein as a new partner as of the
30
th
day of September 1998.
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FALCON CABLE COMMUNICATIONS, LLC
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By:
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Falcon Communications, L.P., its sole Member
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By:
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Falcon Holding Group, L.P., its Managing General Partner
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By:
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Falcon Holding Group, Inc. its General Partner
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By:
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/s/ Stanley S. Itskowitch
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Name:
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Stanley S. Itskowitch
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Title:
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Executive Vice President
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON VIDEO
COMMUNICATIONS, L.P.
Falcon Video Communications, L.P., a limited partnership organized under the Delaware Revised Limited Partnership
Act (the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 3 of the Certificate of Limited Partnership is amended to read in its entirety as
follows:
3.
General Partners
. The names and business addresses of each of the General Partners of the Partnership are as follows:
Charter Communications VII, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, MO 63131-3660
Falcon Cable Communications, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, MO 63131-3660
IN
WITNESS WHEREOF, this Certificate of Amendment has been duly executed on the 25
th
day of June, 2001 by each General Partner designated herein as a new partner.
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Charter Communications VII, LLC,
a
Delaware limited liability company
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President
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Falcon Cable Communications, LLC,
a
Delaware limited liability company
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON VIDEO
COMMUNICATIONS, L.P.
Falcon Video Communications, L.P., a limited partnership organized under the Delaware Revised Limited Partnership
Act (the “Act”), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Act, hereby certifies that Paragraph 3 of the Certificate of Limited Partnership is amended to read in its entirety as
follows:
3.
General Partner
. The name and business address of the sole General Partner of the Partnership is as follows:
Charter Communications VII, LLC
12444 Powerscourt Drive, Suite 100
St. Louis, MO 63131-3660
IN
WITNESS WHEREOF, this Certificate of Amendment has been duly executed on the 23rd day of July, 2001 by the undersigned as the sole General Partner designated herein.
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Charter Communications VII, LLC,
a
Delaware limited liability company
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
FALCON VIDEO
COMMUNICATIONS, L.P.
It is hereby certified that:
FIRST
: The name of the limited partnership (hereinafter called the “partnership”) is Falcon Video Communications, L.P.;
SECOND
: Pursuant to the provisions of Section 17-202, Title 6, Delaware Code, the amendment to the Certificate of Limited partnership
effected by this Certificate of Amendment is to change the address of the registered office of the partnership in the State of Delaware to 2711 Centerville Road, Suite 400, Wilmington, DE 19808, and to change the name of the registered agent of the
partnership in the State of Delaware at the said address to Corporation Service Company.
IN WITNESS WHEREOF, this Certificate of
Amendment has been duly executed on the 12
th
day of January 2004 by the undersigned as the sole General Partner.
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Charter Communications VII, LLC,
a
Delaware limited liability company
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By:
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/s/ Hunt Sevier Brown
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Name:
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Hunt Sevier Brown
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Title:
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Vice President / Authorized Person
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DE LP D-: COA CERTIFICATE OF AMENDMENT TO CHANGE AGENT 09/00 (#670)
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Exhibit 3.262
NINTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
FALCON VIDEO
COMMUNICATIONS, L.P.,
A DELAWARE LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
This NINTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON VIDEO COMMUNICATIONS, L.P., A DELAWARE LIMITED
PARTNERSHIP (this “
Agreement
”) is entered into as of July 1, 2001 by and between CHARTER COMMUNICATIONS VII, LLC, a Delaware limited liability company (“
CC VII
”) as the general partner (the “
General
Partner
”), and FALCON CABLE COMMUNICATIONS, LLC, a Delaware limited liability company (“
FCC
”) as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the
partners of FALCON VIDEO COMMUNICATIONS, L.P., a Delaware limited partnership (the “
Partnership
”).
W I T N E S S E T
H:
WHEREAS, CC VII and FCC were parties to that certain EIGHTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF FALCON
VIDEO COMMUNICATIONS, L.P. dated as of May 24, 2001 (the “
Prior Agreement
”) pursuant to which CC VII held a 1% general partner interest in the Partnership and FCC held a .4755% general partner interest and a 98.5245% limited partner
interest in the Partnership;
WHEREAS, CC VII and FCC are all of the Partners of the Partnership and desire to amend and restate the Prior
Agreement to recharacterize the partnership interest held by FCC such that FCC will hold a 99% limited partner interest in the Partnership.
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a) Effective as of the date and time of filing of the Certificate of Formation (“
Certificate
”) in the office of the Delaware
Secretary of State, the Partnership was formed as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et seq
. (the “
Act
”). Except as expressly provided herein, the rights and
obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be “Falcon Video Communications, L.P.” The
business of the Partnership shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered
agent shall be as stated in the Certificate or as otherwise determined by the General Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite 400, St. Louis, MO 63131. At any time, the
General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership
commenced on the date of the filing of the Certificate in the office of the Delaware Secretary of State and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s) shall execute, deliver and file any certificates (and any amendments
and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the
business to be conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or
incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate
or incidental to the accomplishment of its purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management.
(a)
Management
by
General
Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be
exercised by or under the authority of, and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
- 2 -
The General Partner(s) shall be authorized to elect, remove or replace directors and
officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner(s) in the resolution or
resolutions pursuant to which such directors or officers were elected.
The General Partner(s) shall have the authority to convert the
Partnership into a limited liability company and to take all actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by applicable law, each General Partner shall be authorized to execute or
endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
No annual or regular meetings of the General Partner(s) or the Partners are required. The General Partner(s) may, by written
consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business of the
Partnership to a Board of Directors (the
“
Board
”)
which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and
things as may be done by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights
and duties of the members of the Board may not be assigned or delegated to any person or entity.
ii) Except as otherwise provided
herein, members of the Board shall possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the
laws of the State of Delaware.
iii) The number of directors shall initially be one (1), which number may be changed from
time to time by the General Partner(s). The initial director shall be Jerald L. Kent.
iv) Each director shall be appointed by
the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for
attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
- 3 -
(c)
Consent Required.
The affirmative vote, approval, consent or ratification
of the General Partner(s) shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner(s);
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another entity;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi) operate
the Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who
is a director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
xiv) materially change any of the tax reporting positions or elections of the Partnership;
- 4 -
xv) make or commit to any expenditures which, individually or in the aggregate,
exceed or are reasonably expected to exceed the Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds
Five Million Dollars ($5,000,000), provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to
(or guarantee of indebtedness of) any company controlled by or under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness
of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner(s).
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such
place as shall from time to time be determined by the Board, but not less often than annually.
ii)
Special
Meetings.
Special meetings of the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by
the president or secretary in like manner and on like notice on the written request of Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting
of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section
4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of
Section 4(c), at all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors
present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
- 5 -
(e)
Board’s Duty of Care.
The Board’s duty of care
in the discharge of its duties to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the
manner it reasonably believes to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed
in good faith to be within the scope of authority conferred by this Agreement or approved by the General Partner(s).
SECTION
5.
Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other
additional officers, including a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by
the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold
office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the
General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and
resolutions of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the
General Partner(s) to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no
Chairman, the most senior available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to
all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as
shall be assigned to him or her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the
- 6 -
Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary, any Senior Vice President shall have the power to
vote all securities held by the Partnership and to issue proxies therefor.
iii)
The Secretary.
The Secretary
shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as
the Board may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to
time by the General Partner(s) or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of
the Partnership funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other
valuable effects of the Partnership in the name and to the credit of the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the
General Partner(s) or the Board.
SECTION 6.
Partners.
(a) The Partners of the Partnership shall be set forth on
Schedule
A
hereto. Other persons or entities may
be admitted as Partners from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall
be liable for the debts, liabilities and obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be
expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever. Except as
otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect ownership
interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other assets
as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule A
). Liquidating
distributions shall be divided among the Partners in accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation§ 1.704-l(b)(2)(iv)), and such liquidating distributions
shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
- 7 -
SECTION 8.
Allocations.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in
Schedule A
).
(b) All allocations of Partnership income, gain, loss,
deductions, and other items shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to
satisfy the alternate test for economic effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a
Partner’s capital account (in excess of any limited dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in
determining the extent to which this clause (i) is satisfied, such Partner’s capital account shall be reduced for the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and
otherwise adjusted as provided in the Regulations related thereto), and (ii) a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and
manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the preceding sentence (the “Regulatory Allocations”) are intended to comply with certain requirements of the
Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Partnership income,
gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the General Partner(s) shall make such offsetting special allocations of Partnership income, gain,
loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account balance is, to the extent possible, equal to the capital account balance such Partner would
have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner(s) or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
- 8 -
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the
purposes of winding up its business and affairs as soon as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the
Partnership in accordance with the provisions of this Agreement and the Act. In winding up the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion
to be in the best interests of the Partners, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed
to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against the Partnership, (iii) the making of reasonable provisions for payment of
contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a reasonable time shall be allowed for the
orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation,
mortgage, exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided,
however
,
that this Section 10 shall not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its
affiliates. Upon the transfer of a Partner’s partnership interest, the General Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule
A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional
partners to the Partnership shall be accomplished by the amendment of this Agreement.
SECTION 12.
Tax
Matters.
The Partners agree that it is intended that the Partnership shall be treated as a partnership for purposes of United States federal, state and local income tax laws, and further agree not to take any
position or make any election, in a tax return or otherwise, inconsistent therewith. The “Tax Matters Partner” of the Partnership for purposes of section 6231(a)(7) of the Internal Revenue Code of 1986, as amended,
shall be CC VII. The Tax Matters Partner shall have the power to manage and control, on behalf of the Partnership, any administrative proceeding at the Partnership level with the Internal Revenue Service relating to the
determination of any item of Partnership income, gain, loss, deduction or credit for federal income tax purposes.
SECTION
13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time
shall serve, or shall have served, as a director, officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a
“
Specified
Agent
”)
shall be liable, in damages or otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their
affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the
- 9 -
Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Partnership. Each
Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts and liabilities of the Partnership is insufficient to return such
investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing shall not relieve any Partner of any fiduciary
duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed
claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in
activities on behalf of the Partnership, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the
Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and
reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however
,
that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad
faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with
reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption
that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the Partnership and not from the
Partners.
SECTION 14.
Miscellaneous.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action
on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of
such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the
General Partner(s) may approve.
- 10 -
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and
assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to
any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any
provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
- 11 -
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first
written above.
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CHARTER COMMUNICATIONS VII, LLC
|
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By:
|
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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FALCON CABLE COMMUNICATIONS, LLC
|
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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SCHEDULE A
|
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Partner Name
|
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Number and Type of Units
|
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Charter Communications VII, LLC
|
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1 general partner
|
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Falcon Cable Communications, LLC
|
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99 limited partner
|
Exhibit 3.263
CERTIFICATE OF LIMITED PARTNERSHIP
OF
HELICON PARTNERS I,
L.P.
This Certificate of Limited Partnership of Helicon Partners I, L.P. (the “Partnership”) is being executed by the
undersigned for the purpose of forming a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act.
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1.
|
The name of the Partnership is Helicon Partners I, L.P.
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2.
|
The address of the registered office of the Partnership in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The Partnership’s registered agent at that address is The Corporation Trust
Company.
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3.
|
The name and address of the general partner of the Partnership is as follows:
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Baum
Investments, Inc.
630 Palisade Avenue
Englewood Cliffs, New Jersey 07632
IN WITNESS WHEREOF, the undersigned, being the sole general partner of the Partnership, has caused this Certificate of Limited Partnership to
be duly executed as of the 30th day of November, 1994.
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Baum Investments, Inc., General Partner
|
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By:
|
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/s/ Theodore Baum
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Theodore Baum, President
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CERTIFICATE TO RESTORE TO GOOD STANDING
A DELAWARE LIMITED PARTNERSHIP
PURSUANT TO TITLE 6, SEC. 17-1109
|
1.
|
Name of Limited Partnership is Helicon Partners I, L.P.
|
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2.
|
Date of original filing with Delaware Secretary of State is November 30, 1994.
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I, Baum Investments, Inc.,
General Partner of the above named limited partnership do hereby certify that this limited partnership is paying all annual taxes, penalties and interest due to the State of Delaware.
I do hereby request this limited partnership be restored to Good Standing.
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BAUM INVESTMENTS, INC.
General Partner
|
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By:
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/s/ Theodore B. Baum
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Theodore B. Baum, President
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CERTIFICATE TO RESTORE TO GOOD STANDING
A DELAWARE LIMITED PARTNERSHIP
PURSUANT TO TITLE 6, SEC. 17-1109
|
1.
|
Name of Limited Partnership: Helicon Partners I, L.P..
|
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2.
|
Date of original Filing with Delaware Secretary of State November 30, 1994.
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I, Gregory A. Kriser, Executive
Vice President of Baum Investments, Inc., General Partner of the above named limited partnership do hereby certify that this limited partnership is paying all annual taxes, penalties and interest due to the State of Delaware.
I do hereby request this limited partnership be restored to Good Standing.
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Baum Investments, Inc.
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General Partner
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/s/ Gregory A. Kriser
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Gregory A. Kriser
Vice President
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED
PARTNERSHIP
OF
HELICON
PARTNERS I, L.P.
HELICON PARTNERS I, L.P.
,
a limited partnership organized and existing under and by virtue of the Revised
Uniform Limited Partnership Act of the State of Delaware, DOES HEREBY CERTIFY:
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1.
|
Article 2 of the Certificate of Limited Partnership is hereby amended as follows:
|
: The address of its registered office in the State of Delaware is
30 Old Rudnick Lane, Dover, DE 19901, County of
Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
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4.
|
Article 3 of the Certificate of Limited Partnership is hereby amended as follows:
|
: The name
and address of the general partner of the Partnership is: Charter Helicon, LLC, 12444 Powerscourt Drive, Suite 100, St. Louis, Missouri 63131.
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5.
|
That the aforesaid amendments were duly adopted in accordance with the applicable provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this 9
th
day of December, 1999.
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CHARTER HELICON, LLC
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General Partner
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By:
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/s/ Marcy Lifton
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Marcy Lifton, Vice President
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Exhibit 3.264
AMENDMENT TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
HELICON PARTNERS I,
L.P.
A DELAWARE LIMITED PARTNERSHIP
This Amendment to the Amended and Restated Limited Partnership Agreement of Helicon Partners I, L.P., a Delaware limited partnership
(“
Company
”), is adopted effective as of June 19, 2003 by Charter Helicon, LLC, a Delaware limited liability company as the general partner, and Charter Communications, LLC, a Delaware limited liability company as the limited
partner, with reference to the following facts:
A. The Company is being operated pursuant to that certain Amended and Restated Limited
Partnership Agreement entered into and made effective as of November 30, 2001, by and between Charter Helicon, LLC and Charter Communications, LLC (the “
LP Agreement
”). Unless otherwise defined, capitalized terms used herein have
the meanings assigned to them in the LP Agreement.
B. Section 14(c) of the LP Agreement provides that an amendment to the LP
Agreement to incorporate the changes made by this Amendment shall be effective as an amendment only if approved by a written instrument executed by each Partner. Charter Helicon, LLC and Charter Communications, LLC are all of the Partners of the
Company and desire to approve the amendments to the LP Agreement made by this Amendment.
NOW, THEREFORE, the LP Agreement is hereby
amended as follows:
1. Section 10 of the LP Agreement is amended and restated in its entirety to read as follows:
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage,
exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 10
shall not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership (i) to another Partner or its affiliates, or (ii) pursuant to the Loan Documents (as defined in that
certain Credit Agreement with Charter Communications Operating, LLC as the borrower, dated as of March 18, 1999, as amended and restated as of January 3, 2002, and as further amended and restated by the Second Amended and Restated Credit
Agreement dated as of June 19, 2003, and as it may be amended, supplemented, modified, restated, refunded, renewed, replaced or refinanced from time to time). Upon the transfer of a Partner’s partnership interest, the General Partner shall
provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
2. Section 14(b) of the LP Agreement is amended and restated in its entirety to read as
follows:
(b)
Certificate of Partnership Interest.
A Partner’s partnership interest may be evidenced by a
certificate of partnership interest executed by the General Partner or an officer in such form as the General Partner may approve; provided that such certificate of partnership interest shall not bear a legend that causes such partnership interest
to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment, effective as of the date first
written above.
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CHARTER HELICON, LLC, a Delaware limited liability company as the general partner
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton
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Vice President
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CHARTER COMMUNICATIONS, LLC, a Delaware limited liability company as the limited partner
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton
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Vice President
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Helicon Partners I, L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
HELICON PARTNERS I,
L.P.,
A DELAWARE LIMITED PARTNERSHIP
This Amended and Restated Limited Partnership Agreement of HELICON PARTNERS I, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”)
is entered into as of November 30, 2001, by and between Charter Helicon, LLC, a Delaware limited liability company (“Charter Helicon”) as the general partner
(“
General
Partner
”),
and Charter Communications, LLC, a Delaware limited liability company, (“Charter Communications”) as the limited partner (each, a
“
Partner
”
or collectively, the
“
Partners
”),
as the partners of Helicon Partners I, L.P., a Delaware limited partnership (the
“
Partnership
”).
W I T N E S S E T H:
WHEREAS,
(i) a Certificate of Limited Partnership for the Partnership was filed with the Delaware Secretary of State on November 13, 1994, and (ii) a Certificate of Amendment to the Certificate of Limited Partnership for the Partnership was
filed with the Delaware Secretary of State on December 10, 1999 (the Certificate of Limited Partnership as amended by the Certificate of Amendment, the “Certificate”). This Agreement supersedes Limited Partnership Agreement entered
into April 8, 1996.
WHEREAS, Charter Helicon and Charter Communications are all of the Partners of the Partnership and desire to
adopt and approve this Agreement as the limited partnership agreement of the Partnership to establish their rights and responsibilities and to govern their relationships.
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a)
Effective as of the date and time of filing of the Certificate in the office of the Delaware Secretary of State, the Partnership was formed as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et
seq.
(the
“
Act
”).
Except as expressly provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be Helicon Partners I, L.P., a Delaware limited
partnership”. The business of the Partnership shall be conducted under such name or any other name or names that the General Partner shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered
agent shall be as stated in the Certificate or as otherwise determined by the General Partner. The registered office or registered agent of the Partnership may be changed from time to time by the General Partner.
(d) The principal place of business of the Partnership shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the General
Partner may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the
date of the filing of the Certificate in the office of the Delaware Secretary of State and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or similar
laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner shall execute, deliver and file any certificates (and any amendments and/or
restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership is formed for the object and purpose of, and the nature of the business to be conducted by the
Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and
all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management.
(a)
Management by General Partner.
Charter Helicon shall be the General Partner of the Partnership. Except as otherwise required by
applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the authority of, and the business, property and affairs of the Partnership shall be managed by,
or under the direction of, the General Partner.
The General Partner shall be authorized to elect, remove or replace directors and
officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner in the resolution or resolutions pursuant
to which such directors or officers were elected.
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The General Partner shall have the authority to convert the Partnership into a limited liability
company and to take all actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by
applicable law, Charter Helicon, in its capacity as General Partner, shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on
behalf of the Partnership.
No annual or regular meetings of the General Partner or the Partners are required. The General Partner may, by
written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner may delegate its power to manage the business of the Partnership to a Board
of Directors (the
“
Board
”
)
which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be done by a
general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner. The rights and duties of the members of the Board may not
be assigned or delegated to any person or entity.
ii) Except as otherwise provided herein, members of the Board shall possess and may
exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
iii) The number of directors shall be One, which number may be changed from time to time by the General Partner. The director shall be Carl
E. Vogel.
iv) Each director shall be appointed by the General Partner and shall serve in such capacity until the earlier of his
resignation, removal or replacement by the General Partner.
v) No director shall be entitled to any compensation for serving as a
director. No fee shall be paid to any director for attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
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iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause
the Partnership to engage in any business not authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner;
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another entity;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner to one in which management is vested
in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
xiv) materially change any of the tax reporting positions or elections of the Partnership;
xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee
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of indebtedness of) any company controlled by or under common control with the Partnership (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise
permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner.
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from time to
time be determined by the Board, but not less often than annually.
ii)
Special Meetings.
Special meetings of the Board may be
called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of Partners
holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can
hear each other. Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the directors shall constitute
a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or
this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at
such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties to the Partnership and the Partners is
limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably believes to be in the best interests of the
Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within the scope of authority conferred by this
Agreement or approved by the General Partner.
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SECTION 5.
Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including a Chairman
of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner or the President may from time to time elect. Any two or more offices may be held by the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold office at the pleasure of the Board or
the General Partner. The Board, the General Partner or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the General Partner or the President, and who shall have
such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner or the affirmative vote of at least a majority
of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions of the
Board or the General Partner are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or General Partner to the contrary, the
President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior available officer
appointed by the Board or the General Partner shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or her and shall exercise such
powers as may be granted to him or her by the General Partner, the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner or the President to the contrary, any Senior Vice President shall have the
power to vote all securities held by the Partnership and to issue proxies therefor.
iii)
The Secretary.
The Secretary shall give,
or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as the Board may direct, a book of
minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular
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or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings,
and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the General Partner or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of the Partnership funds and securities and shall keep or cause to be kept full
and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of the Partnership in
depositories designated by the General Partner or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner or the Board.
SECTION 6. Partners.
(a) The
Partners of the Partnership shall be set forth on
Schedule A
hereto. Other persons or entities may be admitted as Partners from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and obligations of the Partnership, including any debts, liabilities and
obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any of its affiliates, partners, members, directors,
managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever.
Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION
7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other assets as shall be determined by the General Partner. Each such distribution, other than liquidating distributions, shall be
divided among the Partners in accordance with their number of partnership units (as set forth in Schedule A); provided, however, that a distribution (other than liquidating distributions) not divided in accordance with the number of partnership
units may be made if (i) the General Partner reasonably determines that such distribution does not result in any Partner receiving more than one hundred five percent (105%) of the amount such Partner would have received (on a cumulative
basis) if all distributions had been divided among the Partners in accordance with their number of partnership units, or (ii) the Partners unanimously consent. Liquidating distributions shall be divided among the Partners in accordance with
their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-1(b)(2)(iv)), and such liquidating distributions shall be made by the end of the Partnership’s taxable year in
which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
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SECTION 8.
Allocations.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number
of partnership units (as set forth in Schedule A).
(b) All allocations of Partnership income, gain, loss, deductions, and other items
shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic
effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of
any limited dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which
this clause (i) is satisfied, such Partner’s capital account shall be reduced for the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise
adjusted as provided in the Regulations related thereto), and (ii) a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a pro rata portion of each item of Partnership income, including
gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the preceding sentence (the “Regulatory Allocations”) are
intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations
of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the General Partner shall make such offsetting special allocations of
Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account balance is, to the extent possible, equal to the capital account balance
such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner or (ii) the occurrence
of any event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be
effective as of the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as
soon as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner shall immediately
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commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In winding up the business and affairs of the Partnership, the General Partner
may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the
Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against the Partnership, (iii) the making of reasonable
provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly
liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner to minimize the losses that may result from a liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or
otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 10 shall not
restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General Partner shall
provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION
11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished by the amendment of this Agreement and, if required by the Act.
SECTION 12.
Tax Matters.
The Partners agree that it is intended that the Partnership shall be treated as a partnership for purposes of
United States federal, state and local income tax laws, and further agree not to take any position or make any election, in a tax return or otherwise, inconsistent therewith. The “Tax Matters Partner” of the Partnership for purposes of
section 6231(a)(7) of the Internal Revenue Code of 1986, as amended, shall be the General Partner. The Tax Matters Partner shall have the power to manage and control, on behalf of the Partnership, any administrative proceeding at the Partnership
level with the Internal Revenue Service relating to the determination of any item of Partnership income, gain, loss, deduction or credit for federal income tax purposes.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership.
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Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts and
liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein; provided, however, that the foregoing
shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided,
however,
that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such Partner’s affiliates
or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not constitute bad faith,
willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any claim, action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the Partnership and not
from the Partners.
SECTION 14.
Miscellaneous.
(a) If the General Partner, the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action on
behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of such
consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the General Partner may
approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in
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exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding
upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the
invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first
written above.
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CHARTER HELICON, LLC
Its
General Partner
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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CHARTER COMMUNICATIONS, LLC
Its Limited Partner
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By:
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Title: Vice President
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SCHEDULE A
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Partner Name
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Number of Units
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Charter Helicon, LLC
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1
partnership units
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Charter Communications, LLC
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99 partnership units
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Exhibit 3.265
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Hometown T.V., LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this Certificate
shall be December 31, 2015 at 11:30 p.m. Eastern Time.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22nd day of
December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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CERTIFICATE OF MERGER OF
HOMETOWN T.V., INC.
WITH AND INTO
HOMETOWN
T.V., LLC
To the Secretary of State
State of Delaware
The undersigned, Hometown T.V., LLC, a Delaware limited liability company, does hereby certify:
FIRST. That the name and jurisdiction of organization of each of the constituent entities of the merger is as follows:
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NAME
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JURISDICTION OF FORMATION
OR ORGANIZATION
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Hometown T.V., Inc.
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New York
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Hometown T.V., LLC
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Delaware
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SECOND. That an agreement and plan of merger among the constituent entities has been approved and executed by
each of the constituent entities in accordance with the requirements of Title 6, Section 18-209 of the Delaware Limited Liability Company Act and the requirements of the New York Business Corporation Law.
THIRD. That the name of the surviving entity of the merger is Hometown T.V., LLC (the “Surviving Entity”), and the name of the
corporation being merged into the Surviving Entity is Hometown T.V., Inc.
FOURTH. That the certificate of formation of the Surviving
Entity as in effect upon the merger shall be its certificate of formation.
FIFTH. That the executed agreement and plan of merger is on
file at the principal place of business of the Surviving Entity located at 12405 Powerscourt Drive, St. Louis, Missouri 63131.
SIXTH.
That a copy of the agreement and plan of merger will be furnished by the Surviving Entity, on request and without cost, to any member of, or any person holding an interest in, any constituent entity of the merger.
SEVENTH. That this Certificate of Merger shall become effective at 11:30 p.m. on December 31, 2015.
IN WITNESS WHEREOF, Hometown T.V., LLC, the Surviving Entity, has caused this Certificate of Merger to be
executed by an authorized person on its behalf the 22nd
day of December, 2015.
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HOMETOWN T.V., LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President - Finance and Corporate
Treasurer
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Exhibit 3.266
LIMITED LIABILITY COMPANY AGREEMENT
OF
Hometown T.V., LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of
December 31, 2015 by Midwest Cable Communications, LLC, a Delaware limited liability company (the “
Member
”), as the member of Hometown T.V., LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall
be Hometown T.V., LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
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(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
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(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
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SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers arc set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
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iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
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(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests
. The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
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(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the
provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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HOMETOWN T.V., LLC
By:
Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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MEMBER
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MIDWEST CABLE COMMUNICATIONS, LLC
By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 1 of 2
Hometown T.V., LLC
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 2 of 2
Hometown T.V., LLC
EXHIBIT A
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Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic Interest
Percentage
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Midwest Cable Communications, LLC
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100
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%
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Exhibit 3.267
CERTIFICATE OF FORMATION
OF
HPI ACQUISITION CO.
LLC
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1.
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The name of the limited liability company is HPI Acquisition Co. LLC
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2.
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The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of formation shall be effective on the date and time of filing.
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IN
WITNESS WHEREOF,
the undersigned has executed this Certificate of Formation of HPI Acquisition Co. LLC this 7th day of February, 1996.
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/s/ Henry Singer
Henry Singer, Esq. – Authorized Person
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
HPI ACQUISITION CO.
LLC
HPI ACQUISITION CO. LLC
, a limited liability company organized and existing under and by virtue of the Limited
Liability Company Act of the State of Delaware, DOES HEREBY CERTIFY:
1. Article 2 of the Certificate of Formation of the Limited
Liability Company is hereby amended as follows:
: The address of its registered office in the State of Delaware is
30 Old Rudnick Lane, Dover, DE 19901, County of Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
2. That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 18-202 of Title 6 of the Delaware
Code.
IN WITNESS WHEREOF, said company has caused this Certificate to be signed by an authorized person this 9
th
day of December, 1999.
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/s/ Marcy Lifton
Name: Marcy Lifton
Authorized Person
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Exhibit 3.268
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
HPI ACQUISITION
CO., LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Helicon Partners I, L.P., a Delaware limited partnership (“HP I”) and The Helicon Group, L.P., a Delaware limited partnership (“THG”) (each a “Member”, and collectively, the “Members”) as
the Members of HPI Acquisition Co., LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS, the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior
Agreement”); and
WHEREAS, HP I and THG, as the members of the Company, wish to amend and restate the Prior Agreement in compliance
with the requirements of the Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to
be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be HPI
Acquisition Co., LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
2
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) HP I and THG, as the members of the Company, hereby elect Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
3
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
4
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
HP I and THG are the Members. The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance
shall be appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of
6
Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall
not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the
Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this
Agreement. If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to
govern their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts,
liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as HP I is a member of the Company, HP I’s Percentage Interest shall be
99 percent. And, so long as THG is a member of the Company, THG’s Percentage Interest shall be 1 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating
distributions) shall be divided among the Members in accordance with their respective Percentage Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member
shall be entitled to look solely to the assets of
7
the Company for the return of such Member’s positive capital account balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all debts,
liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the
Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would
violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to
the Members in accordance with their Percentage Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
8
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
10
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
|
|
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|
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HELICON PARTNERS I, L.P.
By: CHARTER HELICON, LLC, Its General Partner
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|
|
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By:
|
|
/s/ Richard R. Dykhouse
|
|
|
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Richard R. Dykhouse
|
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|
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Vice President, Associate General
|
|
|
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Counsel and Corporate Secretary
|
|
|
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THE HELICON GROUP, L.P.
By: CHARTER HELICON, LLC, Its General Partner
|
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By:
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|
/s/ Richard R. Dykhouse
|
|
|
|
Richard R. Dykhouse
|
|
|
|
Vice President, Associate General
|
|
|
|
Counsel and Corporate Secretary
|
Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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|
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
|
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By:
|
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/s/ Richard R. Dykhouse
|
|
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Richard R. Dykhouse
|
|
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Vice President, Associate General
|
|
|
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Counsel and Corporate Secretary
|
12
EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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13
EXHIBIT B
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|
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Member
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Percentage Interest
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|
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Helicon Partners I, L.P.
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|
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99
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%
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The Helicon Group, L. P.
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|
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1
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%
|
14
Exhibit 3.269
CERTIFICATE OF FORMATION
OF
INTERLINK COMMUNICATIONS PARTNERS, LLC
|
1.
|
The name of the limited liability company is Interlink Communications Partners, LLC.
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2.
|
The address of its registered office in the State of Delaware is 30 Old Rudnick Lane, in the City of Dover, Country of Kent. The name of its registered agent at such address is CorpAmerica, Inc.
|
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Interlink Communications Partners, LLC this 28
th
day of May, 1999.
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|
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/s/ Colleen M. Hegarty
Colleen M. Hegarty, Authorized Person
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CERTIFICATE OF MERGER OF
INTERLINK COMMUNICATIONS PARTNERS, LLLP
a Colorado Registered Limited Liability Limited Partnership
WITH AND INTO
INTERLINK
COMMUNICATIONS PARTNERS, LLC
a Delaware Limited Liability Company
It is hereby certified that:
1. The constituent entities
participating in the merger are:
(i) Interlink Communications Partners, LLLP, a Colorado Limited Liability Limited Partnership, and
(ii) Interlink Communications Partners, LLC, a Delaware Limited Liability Company.
2. An Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent entities in accordance with the
provisions of subsection (b) of Section 18-209 of the Delaware Limited Liability Company Act.
3. The name of the surviving entity is Interlink
Communications Partners, LLC, a Delaware Limited Liability Company.
4. The Certificate of Formation of Interlink Communications Partners, LLC shall be
the Certificate of Formation of the surviving entity.
5. The executed Agreement and Plan of Merger is on file at the principal place of business of
Interlink Communications Partners, LLC located at the following address:
360 South Monroe Street
Suite 600
Denver, Colorado
80209
6. A copy of the Agreement and Plan of Merger will be furnished by Interlink Communications Partners, LLC, on request and without cost, to any
person holding a partnership or membership interest in Interlink Communications Partners, LLLP or Interlink Communications Partners, LLC.
IN WITNESS WHEREOF, Interlink Communications Partners, LLC has caused this Certificate to be
executed by a duly authorized person thereof this 14
th
day of September, 1999.
|
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|
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INTERLINK COMMUNICATIONS PARTNERS, LLC
|
|
|
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By: Charter Communications Operating, LLC, its Sole Member
|
|
|
|
|
By:
|
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/s/ Marcy Lifton
|
|
Name:
|
|
Marcy Lifton
|
|
Title:
|
|
Vice President and Assistant Secretary
|
CERTIFICATE OF MERGER OF
GSP RAP (GP) ACQUISITION,LLC
a Colorado limited liability company
WITH AND INTO
INTERLINK
COMMUNICATIONS PARTNERS, LLC
a Delaware limited liability company
It is hereby certified that:
|
1.
|
The Constituent entities participating in the merger are:
|
|
|
(i)
|
GSP RAP (GP) Acquisition, LLC, a Colorado limited liability company
|
|
|
(ii)
|
Interlink Communications Partners, LLC, a Delaware limited liability company
|
2. An Agreement and Plan of
Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent entities in accordance with the provisions of subsection (b) of Section 18-209 of the Delaware Limited Liability Company Act.
3. The name of the surviving entity is InterLink Communications Partners, LLC, a Delaware limited liability company.
4. The Certificate of Formation of InterLink Communications Partners, LLC shall be the Certificate of Formation of the surviving entity.
5. The executed Agreement and Plan of Merger is on file at the principal place of business of InterLink Communications Partners, LLC located at the following
address:
360 South Monroe Street, Suite 600
Denver, Colorado 80209
6. A copy of the
Agreement and Plan of Merger will be furnished by InterLink Communications Partners, LLC, on request without cost, to any person holding a membership interest in GSP RAP (GP) Acquisition, LLC or InterLink Communications Partners, LLC.
IN WITNESS WHEREOF, Interlink Communications Partners, LLC has caused this Certificate to be
executed by a duly authorized person thereof this 14th day of September, 1999.
|
|
|
|
|
INTERLINK COMMUNICATIONS PARTNERS, LLC
|
|
|
|
|
By:
|
|
/s/ Marcy Lifton
|
|
Name:
|
|
Marcy Lifton
|
|
Title:
|
|
Vice President and Assistant Secretary
|
CERTIFICATE OF MERGER OF
TENNESSEE, LLC
WITH
AND INTO
INTERLINK COMMUNICATIONS PARTNERS, LLC
To the Secretary of State
State of Delaware
The undersigned, Interlink Communications Partners, LLC, a Delaware limited liability company, does hereby certify:
FIRST. That the name and jurisdiction of organization of each of the constituent entities of the merger is as follows:
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NAME
|
|
JURISDICTION OF FORMATION
OR ORGANIZATION
|
|
Tennessee, LLC
|
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Delaware
|
|
Interlink Communications Partners, LLC
|
|
Delaware
|
SECOND. That an agreement and plan of merger among the constituent entities has been approved and executed by
each of the constituent entities in accordance with the requirements of Title 6, Section 18-209 of the Delaware Limited Liability Company Act.
THIRD. That the name of the surviving entity of the merger is Interlink Communications Partners, LLC (the “surviving Entity”), and
the name of the limited liability company being merged into the Surviving Entity is Tennessee, LLC.
FOURTH. That the certificate of
formation of the Surviving Entity as in effect upon the merger shall be its certificate of formation.
FIFTH. That the executed agreement
and plan of merger is on file at the principal place of business of the Surviving Entity located at 12405 Powerscourt Drive, St. Louis, Missouri 63131.
SIXTH. That a copy of the agreement and plan of merger will be furnished by the Surviving Entity, on request and without cost, to any member
of, or any person holding an interest in, any constituent entity of the merger.
SEVENTH. That this Certificate of Merger shall become
effective at 2:00 a.m. Eastern Time on May 18, 2016.
IN WITNESS WHEREOF, Interlink Communications Partners, LLC, the Surviving Entity, has caused this Certificate of
Merger to be executed by an authorized person on its behalf the 13
th
day of May, 2016.
|
|
|
|
|
INTERLINK COMMUNICATIONS PARTNERS, LLC
|
|
By: Charter Communications, Inc., its Manager
|
|
|
|
|
By:
|
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/s/ Thomas M. Degnan
|
|
Name:
|
|
Thomas M. Degnan
|
|
Title:
|
|
Senior Vice President – Finance and Corporate Treasurer
|
2
Exhibit 3.270
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
INTERLINK
COMMUNICATIONS PARTNERS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Communications Operating, LLC, a Delaware limited liability company (“CCO”), as the sole member of Interlink Communications Partners, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior Agreement”); and
WHEREAS, CCO, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be
Interlink Communications Partners, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
2
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCO, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
3
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
4
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCO is the sole Member. CCO is not required to make any capital contribution to the Company; however, CCO may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv).
6
The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit
upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCO shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement. If
an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern their
relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCO is the sole member of the Company, CCO’s Percentage Interest shall
be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
7
that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
8
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
10
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS
OPERATING, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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12
EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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13
EXHIBIT B
Member
Charter Communications Operating, LLC
14
Exhibit 3.271
CERTIFICATE OF FORMATION
OF
LONG BEACH, LLC
This Certificate of Formation of Long Beach, LLC is being duly executed and filed by the undersigned, as an authorized person, for
the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
FIRST: The name
of the limited liability company is Long Beach, LLC.
SECOND: The address of its registered office in the State of Delaware
is 1209 Orange Street, Wilmongton, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Long Beach, LLC this 14th day of August, 1998.
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/s/ Milton B. Hyman
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Milton B. Hyman, Authorized Person
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CERTIFICATE OF MERGER OF
LONG BEACH ACQUISITION CORP.
a Delaware corporation
INTO
LONG BEACH,
LLC
a Delaware limited liability company
It is hereby certified that:
1. The constituent entities participating in the merger are:
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(i)
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Long Beach Acquisition Corp., a Delaware corporation
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(ii)
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Long Beach, LLC, a Delaware limited liability company
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2. An Agreement of Merger has been
approved, adopted, certified, executed and acknowledged by each of the constituent entities in accordance with the provisions of Section 18-209 of the Delaware Limited Liability Company Act and subsection (c) of Section 264 of the General
Corporation Law of the State of Delaware.
3. The name of the surviving limited liability company is Long Beach, LLC, a Delaware limited
liability company.
4. The executed Agreement of Merger is on file at the office of Long Beach, LLC located at the following address:
12444 Powerscourt Drive
Suite
400
St. Louis, Missouri 63131
5. A copy of the Agreement of Merger will be furnished by Long Beach, LLC, on request and without cost, to any member of Long Beach, LLC or to
any stockholder of Long Beach Acquisition Corp.
IN W1TNESS WHEREOF, Long Beach, LLC has caused this Certificate to be executed by an Authorized
Person thereof this 30
th
day of December, 1998.
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LONG BEACH, LLC
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton, Authorized Person
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- 2 -
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
LONG BEACH,
LLC
LONG BEACH, LLC
a limited liability company organized and existing under and by virtue of the Limited Liability
Company Act of the State of Delaware, DOES HEREBY CERTIFY:
1. Article 2 of the Certificate of Formation of the Limited Liability
Company is hereby amended as follows:
: The address of its registered office in the State of Delaware is
30 Old
Rudnick Lane, Dover, DE 19901, County
of Kent.
The name of it registered agent at such address is
CorpAmerica, Inc.
2. That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 18-202 of Title 6 of the Delaware
Code.
IN WITNESS WHEREOF, said company has caused this Certificate to be signed by an authorized person this 29
th
day of January, 1999.
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Authorized Person
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF
DOMESTIC LIMITED LIABILITY COMPANIES
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Act, the undersigned limited liability company executed the
following Certificate of Merger.
FIRST:
The name of the surviving limited liability company is Long Beach, LLC, and the name of the
limited liability company being merged into this surviving limited liability company is Charter Communications Service, LLC.
SECOND:
The Agreement
of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent limited liability companies.
THIRD
:
The name of the surviving limited liability company is Long Beach, LLC.
FOURTH:
The merger is to become effective on September 26, 2006.
FIFTH
:
The Agreement of Merger is on file at 12405 Powerscourt Drive, St. Louis, MO 63131, the place of business of the surviving
limited liability company.
SIXTH
:
A copy of the Agreement of Merger will be furnished by the surviving limited liability company on
request, without cost, to any member of the constituent limited liability companies.
IN WITNESS WHEREOF,
said surviving
limited liability company has caused this Certificate to be signed by an authorized person, the 25
th
day of September, A.D., 2006.
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By:
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/s/ Richard R. Dykhouse
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Authorized Person
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Name:
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Richard R. Dykhouse
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Print or Type
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Title:
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Vice President of Manager
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Exhibit 3.272
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
LONG BEACH, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of June 19, 2003 by Charter Communications Operating, LLC, a Delaware limited liability company (“
Charter
”), as the sole member of Long Beach, LLC, a Delaware limited liability company (the
“
Company
”).
W I T N E S S E T H:
WHEREAS, the Certificate of Formation of the Company was executed and filed in the office of the Secretary of State of the State of Delaware
on August 14, 1998; and
WHEREAS, Charter is the sole member of the Company;
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6
Del.
C. § 18-101,
et
.
seq
., as amended from time to time (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section l(h))
in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company
shall be “Long Beach, LLC.” The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o CorpAmerica, Inc., 30
Old Rudnick Lane, Dover, DE 19901. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be CorpAmerica, Inc., 30 Old Rudnick Lane, Dover, DE 19901. The registered office or registered
agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At anytime, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation by Milton B. Hyman and the filing thereof in the office of
the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The
Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each one
percentage point of Percentage Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval,
consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a
precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company
was formed for the object and purpose of, and the nature of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) Charter, as the sole member of the Company, hereby confirms the election of Charter Communications, Inc., a Delaware corporation
(“
CCI
”), or its
successor-
in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”).
CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager
- 2 -
without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities).
Except as otherwise required by applicable law and as provided below with respect to the Board, the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be
managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the Manager may delegate its power to manage the business of the Company to a board of natural
persons designated as “directors” (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Company and do all such lawful acts and things as may be done
by a manager of a limited liability company under the Act and as are not by statute, by the Certificate of Formation (as amended from time to time, the “
Certificate
”), or by this Agreement (including without limitation
Section 4(c) hereof) directed or required to be exercised or done by the Manager. Except for the rights and duties that are assigned to officers of the Company, the rights and duties of the directors may not be assigned or delegated to any
person. No action, authorization or approval of the Board shall be required,
- 3 -
necessary or advisable for the taking of any action by the Company that has been approved by the Manager. In the event that any action of the Manager conflicts with any action of the Board, the
action of the Manager shall control.
ii) Except as otherwise provided herein, directors shall possess and may exercise all the powers and
privileges and shall have all of the obligations and duties to the Company and the Members granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
iii) The number of directors on the date hereof is one, which number may be changed from time to time by the Manager. The director as of the
date hereof shall be as set forth on
Exhibit A
hereto, provided that Exhibit A need not be amended whenever the director(s) or his or her successors are changed in accordance with the terms of this Agreement.
iv) Each director shall be appointed by the Manager and shall serve in such capacity until the earlier of his or her resignation, removal
(which may be with or without cause) or replacement by the Manager.
v) No director shall be entitled to any compensation for serving as a
director. No fee shall be paid to any director for attendance at any meeting of the Board; provided, however, that the Company may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
i)
None of the Members, Managers, directors, or officers of the Company shall:
(1) do any act in contravention of this Agreement;
(2) cause the Company to engage in any business not permitted by the Certificate or the terms of this Agreement;
(3) cause the Company to take any action that would make it impossible to carry on the usual course of business of the Company (except to the
extent expressly provided for hereunder); or
(4) possess Company property or assign rights in Company property other than for Company
purposes.
ii) One hundred percentage (100%) of the Votes shall be required to:
(1) issue limited liability company interests in the Company to any person;
(2) change or reorganize the Company into any other legal form;
- 4 -
(3) approve a merger or consolidation of the Company with another person;
(4) sell all or substantially all of the assets of the Company; or
(5) voluntarily dissolve the Company.
iii) In addition to any approval that may be required under Section 15(b) to the extent amendment of this Agreement is required for any
of the following actions, the affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the
primary purposes of the Company as set forth in Section 2;
(2) issue limited liability company interests in the Company to any
person;
(3) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person
other than the Manager (and the Board);
(4) change or reorganize the Company into any other legal form;
(5) approve a merger or consolidation of the Company with another person;
(6) sell all or substantially all of the assets of the Company;
(7) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(8) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(9) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(10) materially change any of the tax reporting positions or elections of the Company;
(11) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000);
- 5 -
(12) make or incur any secured or unsecured indebtedness which, individually or in the
aggregate, exceeds Five Million Dollars ($5,000,000), provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing (including obligations under that
certain Credit Agreement with Charter Communications Operating, LLC as the borrower, dated as of March 18, 1999, as amended and restated as of January 3, 2002 and as further amended and restated by the Second Amended and Restated Credit
Agreement dated as of June 19, 2003 (as it may be amended, supplemented, modified, restated, refunded, renewed, replaced or refinanced from time to time, the “
Credit Agreement
”) and the Loan Documents (as defined in the Credit
Agreement), all of which have been, and are hereby, ratified and confirmed), (ii) any indebtedness to (or guarantee of indebtedness of) any·entity controlled by or under common control with the Company (“
Intercompany
Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the
Manager; or
(13) voluntarily dissolve the Company.
(d)
Board Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time
be determined by the Board, but not less often than annually.
ii)
Special Meetings.
Special meetings of the Board maybe called by
the President or any director on twenty-four (24) hours’ notice to each director; special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of Members holding a simple majority
of the Votes. Notice of a special meeting may be given by facsimile. Attendance in person of a director at a meeting shall constitute a waiver of notice of that meeting, except when the director objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not duly called or convened.
iii)
Telephonic Meetings.
Directors may
participate in any regular or special meeting of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to
this Section 4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
At all meetings of the Board, a
majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically
provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall
be given to any director not present at such meeting.
- 6 -
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this
Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all directors consent thereto in writing and such written consent is filed with the minutes of proceedings of the Board.
(e)
Director’s Duty of Care.
Each director’s duty of care in the discharge of his or her duties to the Company and the
Members is limited to discharging his duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner he or she reasonably believes to be in the best
interests of the Company and its Members.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual.
(b)
Election and
Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other
officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the
provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be
removed by the action of the Manager or the action of at least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the
Secretary may also be removed by the Chairman of the Board or the President, with or without cause, for any reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has
been appointed as such) the chief operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business
and finances of the Company; and shall see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the
absence of direction by the Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
Chairman of the Board (if any) or, if there is no
- 7 -
Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as
if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President,
if any, shall perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board
or the President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board.
The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and
place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings
thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall
deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the
Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall
exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
Charter is the sole Member, and it (or its predecessor) has heretofore contributed to the capital of the Company. Charter is not required to make any additional capital contribution to the Company; however, Charter may make additional capital
contributions to the Company at any time in its sole discretion (for which its capital account balance shall be appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance
- 8 -
with the principles of Treasury Regulation section 1.704-l(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest
extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, Charter shall not have any duty or obligation to any creditor of the Company to
make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time
pursuant to the provisions of this Agreement. If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and
responsibilities of the Members and to govern their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member
shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the
Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor
a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the
relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and
their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and
description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding
any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “
Percentage Interest
” shall mean with respect to
any Member as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as Charter is the sole member of the Company, Charter’s
Percentage Interest shall be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members
such amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Percentage Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such
Member’s positive capital
- 9 -
account balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to
return the capital contributions or share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) (i) all or a portion of its limited liability company interest
- 10 -
in the Company to another Member or (ii) pursuant to the Loan Documents (as defined in the Credit Agreement). Upon the transfer of a Member’s limited liability company interest, the
Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its
activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income
tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to
subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein; provided, however, that the foregoing shall not
relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the
- 11 -
Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf
of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any
Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such
Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act
or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager,
director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15. Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend
- 12 -
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of
Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in
this Agreement may be amended, and compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege
granted hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted
hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective
successors and assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings. This Agreement amends and restates the Limited Liability Company Agreement of Long Beach, LLC dated as of August 14, 1998.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
- 13 -
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS
OPERATING,
LLC,
a Delaware limited liability company
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton
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Vice President
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement, approving the
amendment and restatement of the prior limited liability company agreement by this Agreement, and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton
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Vice President
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Long Beach, LLC/Amended and Restated
EXHIBIT A
Director
Carl Vogel
EXHIBIT B
Member
Charter Communications Operating, LLC
- 15 -
Exhibit 3.273
CERTIFICATE OF FORMATION
of
MARCUS CABLE
ASSOCIATES, L.L.C.
The undersigned, as an authorized person, is duly executing and filing the following Certificate of Formation for
the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6
Del.C.
§18-101, et. seq.) (the “Act”):
ARTICLE I
The name of
the limited liability company is Marcus Cable Associates, L.L.C. (the “Company”).
ARTICLE II
The address of the Company’s registered office and the name and address of its registered agent for service of process are as follows:
The Corporation Trust Company
1209 Orange Street
Wilmington, DE
19801
2
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of
April 23, 1998.
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By:
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/s/ Richard A. B. Gleiner
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Richard A. B. Gleiner
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Authorized Person
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF
FORMATION
OF
MARCUS CABLE ASSOCIATES, L.L.C.
MARCUS CABLE ASSOCIATES, L.L.C.
a limited liability company organized and existing under and by virtue of the Limited Liability
Company Act of the State of Delaware, DOES HEREBY CERTIFY:
1. Article 2 of the Certificate of Formation of the Limited Liability Company
is hereby amended as follows:
: The address of its registered office in the State of Delaware is
30 Old Rudnick
Lane, Dover, DE 19901, County of Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
2.
That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 18-202 of Title 6 of the Delaware Code.
IN WITNESS WHEREOF, said company has caused this Certificate to be signed by an authorized person this 25
th
day of March, 1999.
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/s/ Marcy Lifton
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Name: Marcy Lifton
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Authorized Person
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
FOREIGN LIMITED LIABILITY COMPANY
WITH AND INTO
A DOMESTIC
LIMITED LIABILITY COMPANY
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Company Act, it is hereby certified
that:
1. The constituent business entities participating in the merger herein certified are:
a. Marcus Cable Associates, L.L.C., a Delaware limited liability company (“
Marcus DE
”) and wholly owned subsidiary of Charter
Cable Operating Company, LLC; and
b. MARCUS CABLE ASSOCIATES, L.L.C., a Virginia limited liability company (“
Marcus
VA
”).
2. An Agreement and Plan of Merger has been approved, adopted, executed and acknowledged by the aforesaid constituent
entities in accordance with the provisions of 18-209 of the Limited Liability Company Act of the State of Delaware, to wit, by Marcus VA in accordance with the laws of the Commonwealth of Virginia and by Marcus DE in the same manner as is provided
in Section 18-209 of the Limited Liability Act of the State of Delaware.
3. The name of the surviving domestic limited liability company
is “Marcus Cable Associates, L.L.C.,” which is duly formed under Delaware law.
4. The executed Agreement and Plan of Merger
between the aforesaid constituent entities is on file at the principal place of business of the aforesaid surviving limited liability company at:
12405 Powerscourt Drive
St.
Louis, Missouri 63131
5. A copy of the Agreement and Plan of Merger will be furnished by Marcus DE, on request and without cost, to any
member or any person holding an interest in the aforesaid constituent entities.
IN WITNESS WHEREOF, Marcus Cable Associates, L.L.C., a Delaware limited liability company, has
caused this certificate to be signed by its authorized person, this 16
th
day of July, 2003.
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MARCUS CABLE ASSOCIATES, L.L.C.
a Delaware limited liability company
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton, Vice President
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Exhibit 3.274
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MARCUS CABLE
ASSOCIATES, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Cable Operating Company, LLC, a Delaware limited liability company (“CCOC”), as the sole member of Marcus Cable Associates, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior Agreement”); and
WHEREAS, CCOC, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Marcus
Cable Associates, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
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SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCOC, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
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(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
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(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
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Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCOC is the sole Member. CCOC is not required to make any capital contribution to the Company; however, CCOC may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be
appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury
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Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not
be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCOC shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern
their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCOC is the sole member of the Company, CCOC’s Percentage Interest
shall be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
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that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
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SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
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Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
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(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER CABLE OPERATING COMPANY, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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12
EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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13
EXHIBIT B
Member
Charter Cable Operating Company, LLC
14
Exhibit 3.275
CERTIFICATE OF FORMATION
of
MARCUS CABLE OF
ALABAMA, L.L.C.
The undersigned, as an authorized person, is duly executing and filing the following Certificate of Formation for the
purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6
Del.C.
§18-101, et. seq.) (the “Act”):
ARTICLE I
The name of
the limited liability company is Marcus Cable of Alabama, L.L.C. (the “Company”).
ARTICLE II
The address of the Company’s registered office and the name and address of its registered agent for service of process are as follows:
The Corporation Trust Company
1209 Orange Street
Wilmington, DE
19801
3
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of April 23,
1998.
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By:
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/s/ Richard A. B. Gleiner
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Richard A. B. Gleiner
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Authorized Person
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF
FORMATION
OF
MARCUS CABLE OF ALABAMA, L.L.C.
MARCUS CABLE OF ALABAMA, L.L.C.
a limited liability company organized and existing under and by virtue of the Limited Liability
Company Act of the State of Delaware, DOES HEREBY CERTIFY:
1. Article 2 of the Certificate of Formation of the Limited Liability Company
is hereby amended as follows:
: The address of its registered office in the State of Delaware is
30 Old Rudnick
Lane, Dover, DE 19901, County of Kent
.
The name of the registered agent at such address is
CorpAmerica, Inc.
2. That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 18-202 of Title 6 of the Delaware
Code.
IN WITNESS WHEREOF, said company has caused this Certificate to be signed by an authorized person this 25
th
day of March, 1999.
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Authorized Person
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY
WITH AND INTO
A DOMESTIC
LIMITED LIABILITY COMPANY
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Company Act, it is hereby certified
that:
1. The constituent business entities participating in the merger herein certified are:
a. Alabama Reorg, LLC, a Delaware limited liability company (“Alabama Reorg”) and wholly owned subsidiary of Marcus Cable (as
defined below); and
b. Marcus Cable of Alabama, L.L.C., an Delaware limited liability company (“Marcus Cable”).
2. An Agreement of Merger has been approved, adopted, executed and acknowledged by the aforesaid constituent entities in accordance with the
provisions of 18-209 of the
Limited
Liability Company Act of the State
of Delaware.
3. The name of the surviving
limited liability company herein certified is Marcus Cable of Alabama, L.L.C.
4. The executed Agreement of Merger between the aforesaid
constituent entities is on file at the principal place of business of the aforesaid surviving limited liability company at:
12444
Powerscourt Drive
St. Louis, Missouri 63131
5. A copy of the Agreement of Merger will be furnished by the surviving limited liability company, on request and without cost, to any member
or any person holding an interest in the aforesaid constituent entities.
IN WITNESS WHEREOF
,
said Limited Liability Company has caused this certificate to be signed by its
authorized person, this 29
th
day of June, 2001.
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By:
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/s/ Curtis S. Shaw
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Curtis S. Shaw, Authorized Person
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CERTIFICATE OF CORRECTION OF THE CERTIFICATE OF MERGER
OF
ALABAMA REORG, LLC
WITH AND INTO
MARCUS CABLE OF
ALABAMA, L.L.C.
The undersigned, Marcy Lifton hereby certifies:
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1.
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The names of the constituent entities are Alabama Reorg, LLC and Marcus Cable of Alabama, L.L.C.
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2.
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The Certificate of Merger which was filed in the Office of the Delaware Secretary of State on July 2, 2001 requires correction as permitted by Section 18-211 of the Delaware Limited Liability Company Act in that the
execution date was set forth incorrectly.
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3.
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The execution date in corrected form is as follows:
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IN WITNESS WHEREOF, said Limited Liability
Company has caused this certificate to be signed by its authorized person, this 30
th
day of June, 2001.
IN WITNESS WHEREOF, the undersigned has executed this Corrected Certificate of Merger this
30
th
day of August, 2001.
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By:
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/s/ Marcy Lifton
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Marcy Lifton, Authorized Person
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Exhibit 3.276
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
MARCUS CABLE OF
ALABAMA, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Cable Operating Company, LLC, a Delaware limited liability company (“CCOC”), as the sole member of Marcus Cable of Alabama, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior Agreement”); and
WHEREAS, CCOC, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall
be Marcus Cable of Alabama, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
2
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCOC, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
3
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
4
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCOC is the sole Member. CCOC is not required to make any capital contribution to the Company; however, CCOC may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be
appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury
6
Regulation section 1.704-l(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not
be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCOC shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern
their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCOC is the sole member of the Company, CCOC’s Percentage Interest
shall be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
7
that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
8
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
10
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER CABLE OPERATING COMPANY, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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12
EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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EXHIBIT B
Member
Chatter Cable Operating Company, LLC
14
Exhibit 3.277
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Marcus Cable, LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808. The name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this
Certificate shall be December 31, 2015 at 7:30p.m. Eastern Time.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22nd
day of December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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Exhibit 3.278
LIMITED LIABILITY COMPANY AGREEMENT
OF
Marcus Cable, LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”)
is entered into as of
December 31, 2015 by Robin Media Group, LLC, a Delaware limited liability company (the
“
Member
”),
as the member of Marcus Cable, LLC, a Delaware limited liability company (the
“
Company
”).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“
Manager
”)
desires to form a limited liability company under the laws
of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the
Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”).
Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Marcus Cable, LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service
of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the
“
Member
”;
or if there are more than one, the
“
Members
”)
shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”)
for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s
execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation
(“
CCI
”),
or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“
Manager
”).
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(“
Intercompany Indebtedness
”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
8
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded
entity for United States federal tax purposes. So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be disregarded as an entity separate
from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a
partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate
book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and
Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company,
their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage,
or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against
such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of
authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge
of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule,
the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule
is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a
limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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MARCUS CABLE, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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MEMBER
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ROBIN MEDIA GROUP, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 1 of 2
Marcus Cable, LLC
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 2 of 2
Marcus Cable, LLC
EXHIBIT A
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Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic Interest
Percentage
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Robin Media Group, LLC
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100
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%
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Exhibit 3.279
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Midwest Cable Communications, LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.
The name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this Certificate
shall be December 31, 2015 at 11:00 p.m. Eastern Time.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22nd day of
December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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Exhibit 3.280
LIMITED LIABILITY COMPANY AGREEMENT
OF
Midwest Cable
Communications, LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”)
is entered into as of
December 31, 2015 by CC VIII Operating, LLC, a Delaware limited liability company (the
“
Member
”),
as the member of Midwest Cable Communications, LLC, a Delaware limited liability company (the
“
Company
”).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“
Manager
”)
desires to form a limited liability company under the
laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of
the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”). Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Midwest Cable Communications, LLC. The business of the Company shall be conducted under
such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the
“
Member
”;
or if there are more than one, the
“
Members
”)
shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”)
for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s
execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4. Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation
(“
CCI
”),
or its successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“
Manager
”).
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company
in such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is
a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any
Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company
funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the
name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are
not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-l(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may
be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15. Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager
may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform
Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall
be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
MIDWEST CABLE COMMUNICATIONS, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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MEMBER
CC VIII OPERATING, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 1 of 2
Midwest Cable Communications, LLC
BUS_RE 5850074.1
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 2 of 2
Midwest Cable Communications, LLC
BUS_RE 5850074.1
EXHIBIT A
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Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic
Interest
Percentage
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CC VIII Operating, LLC
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100
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%
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Exhibit 3.281
CERTIFICATE OF LIMITED PARTNERSHIP
OF
PEACHTREE CABLE TV, L.P.
The undersigned sole general partner of Peachtree Cable TV, L.P. desiring to form a limited partnership under the Delaware Revised
Uniform Limited Partnership Act, 6
Del
.
C
., paragraphs 17-101
et
seq
., does hereby certify as follows:
1.
Name
. The name of the limited partnership is Peachtree Cable TV, L.P. (the “Partnership”).
2.
Registered Office and
Agent
. The registered Office of the Partnership in the State of Delaware is located at 30 Old Rudnick Lane, in the City of Dover, County of Kent, Delaware 19901. The registered Agent of the Partnership for service of process in Delaware is
CorpAmerica, Inc.
3.
General Partner
. The name and business address of the sole general partner of the Partnership are:
Charter Communications, LLC
12444 Powerscourt Drive
Suite
400
St. Louis, Missouri 63131-3660
IN WITNESS WHEREOF, the undersigned has duly caused its sole general partner to execute this Certificate as of January 29,1999.
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Peachtree Cable TV, L.P.
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By:
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Charter Communications, LLC,
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its general partner
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By:
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Marcy A. Lifton
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Marcy A. Lifton
Vice President
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Exhibit 3.282
FIRST AMENDMENT TO THE
AGREEMENT OF LIMITED PARTNERSHIP
OF
PEACHTREE CABLE TV,
L.P.
A DELAWARE LIMITED PARTNERSHIP
This First Amendment to the Agreement of Limited Partnership of Peachtree Cable TV, L.P., a Delaware limited partnership
(“Company”),
is adopted effective as of June 19, 2003 by Charter Communications, LLC, a Delaware limited liability company as the general partner, and Peachtree Cable TV, LLC, a Delaware limited liability company as the limited
partner, with reference to the following facts:
A. The Company is being operated pursuant to that certain Agreement of Limited
Partnership entered into and made effective as of February 1, 1999, by and between Charter Communications, LLC and Peachtree Cable TV, Inc. (the predecessor of Peachtree Cable TV, LLC) (the
“LP Agreement”).
Unless otherwise
defined, capitalized terms used herein have the meanings assigned to them in the LP Agreement.
B. Section 15(b) of the LP Agreement
provides that an amendment to the LP Agreement to incorporate the changes made by this First Amendment shall be effective as an amendment only if approved by a written instrument executed by each Partner. Charter Communications, LLC and Peachtree
Cable TV, LLC are all of the Partners of the Company and desire to approve the amendments to the LP Agreement made by this First Amendment.
NOW, THEREFORE, the LP Agreement is hereby amended as follows:
1. Section 11 of the LP Agreement is amended and restated in its entirety to read as follows:
SECTION 11.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage,
exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 11
shall not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership (i) to another Partner or its affiliates, or (ii) pursuant to the Loan Documents (as defined in that certain
Credit Agreement with Charter Communications Operating, LLC as the borrower, dated as of March 18, 1999, as amended and restated as of January 3, 2002, and as further amended and restated by the Second Amended and Restated Credit Agreement
dated as of June 19, 2003, and as it may be amended, supplemented, modified, restated, refunded, renewed, replaced or refinanced from time to time). Upon the transfer of a Partner’s partnership interest, the General Partner shall provide
notice of such transfer to each of the other Partners and shall amend
Exhibit A
hereto to reflect the transfer.
2. Section 15(a) of the LP Agreement is amended and restated in its entirety to read as
follows:
(a) A Partner’s partnership interest may be evidenced by a certificate of partnership interest executed by
the General Partner or an officer in substantially the form attached hereto as Exhibit B (or in such other form as the General Partner may approve); provided that such certificate of partnership interest shall not bear a legend that causes such
partnership interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
- 2 -
IN WITNESS WHEREOF, the undersigned have executed this First Amendment, effective as of the date
first written above.
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CHARTER COMMUNICATIONS, LLC, a Delaware limited liability company as the general partner
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton
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Vice President
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PEACHTREE CABLE TV, LLC., a Delaware limited liability company as the limited partner
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton
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Vice President
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Peachtree Cable TV, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
OF
PEACHTREE CABLE TV,
L.P.
(a Delaware Limited Partnership)
This AGREEMENT OF LIMITED PARTNERSHIP OF PEACHTREE CABLE TV, L.P. (this “Agreement”), is entered into as of February 1, 1999 by
and between Charter Communications, LLC, a Delaware limited liability company (“CC LLC”) and Peachtree Cable TV, Inc., a Delaware corporation (“Peachtree”), (each, a “Partner” or collectively, the “Partners”),
as the initial partners of Peachtree Cable TV, L.P., a Delaware limited partnership (the “Partnership”).
W I T N E S S E T H:
WHEREAS, CC LLC and Peachtree formed the Partnership under the Delaware Revised Uniform Limited Partnership Act
(6
Del.
C.§ 17-101, et. seq.) (the “Act”); and
WHEREAS, the Certificate of Limited Partnership (the
“Certificate”) of the Partnership was executed and filed in the office of the Secretary of State of the State of Delaware on February 1, 1999;
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a)
Effective as of the date and time of filing of the Certificate in the office of the Secretary of State of the State of Delaware, the parties hereby form a limited partnership under the Act. Except as expressly provided herein, the rights and
obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The
name of the Partnership shall be “Peachtree Cable TV, L.P.”. The business of the Partnership shall be conducted under such name or any other name or names that the General Partner shall determine from time to time.
(c) The address of the registered office of the Partnership in the State of Delaware shall be c/o CorpAmerica, Inc., 30 Old Rudnick Lane,
Dover, Delaware 19901. The name and address of the registered agent for service of process on the Partnership in the State of Delaware shall be CorpAmerica, Inc., 30 Old Rudnick Lane, Dover, Delaware 19901. The registered office or registered agent
of the Partnership may be changed from time to time by the General Partner.
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite
400, St. Louis, MO 63131. At any time, the General Partner may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership will commence on the date of the filing of the Certificate in the office of the Secretary of State of the
State of Delaware, and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The execution of the Certificate by CC LLC and the filing thereof in the office of the Secretary of State of the State of Delaware, are
hereby ratified, confirmed and approved by the Partners.
(g) The General Partner shall cause the Partnership to be qualified, formed or
registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner, as an
authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may
wish to conduct business.
SECTION 2.
Purposes.
The Partnership is formed for the object and purpose of, and the nature of the
business to be conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management.
(a)
Management by General Partner.
CC LLC shall be the General Partner of the Partnership. Except as otherwise required by applicable
law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the authority of, and the business, property and affairs of the Partnership shall be managed by, or under the
direction of, the General Partner.
The General Partner shall be authorized to elect, remove or replace directors and officers of the
Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner in the resolution or resolutions pursuant to which such
directors or officers were elected.
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Except as otherwise required by applicable law, CC LLC, in its capacity as General Partner, shall
be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
No annual or regular meetings of the General Partner or the Partners are required. The General Partner may, by written consent, take any
action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner may delegate its power to manage the business of the Partnership to a Board
of Directors (the “Board”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be done by a general partner of a limited
partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner. The rights and duties of the members of the Board may not be assigned or delegated to
any person or entity.
ii) Except as otherwise provided herein, members of the Board shall possess and may exercise all the powers and
privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
iii) The number of directors shall initially be one (1), which number may be changed from time to time by the General Partner. The initial
director shall be as Jerald L. Kent.
iv) Each director shall be appointed by the General Partner and shall serve in such capacity until
the earlier of his or resignation or removal or replacement by the General Partner.
v) No director shall be entitled to any compensation
for serving as a director. No fee shall be paid to any director for attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any Person and admit such Person as a Partner;
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iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause
the Partnership to engage in any business not authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner;
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another Person;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner to one in which management is vested
in the Partners or in any other Person, other than as may be delegated to the Board and the officers hereunder;
x) possess any
Partnership property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi)
operate the Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any Person who is a
director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or any Affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will exceed $5,000,000;
xiv) materially change any of the tax reporting positions or elections of the Partnership;
xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided that
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this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does
increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under common control with the Partnership (“Intercompany Indebtedness”), (iii) the pledge of any assets to support
any otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner.
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time
be determined by the Board, but not less often than annually.
ii)
Special Meetings.
Special meetings of the Board may be called
by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of Partners holding a
majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic
Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section 4.4(c) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of Section 4.3, at all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting
from time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or permitted to be
taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties to the Partnership and the Partners is
limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably believes to be in the best interests of the
Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within the scope of authority conferred by this
Agreement or approved by the General Partner.
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SECTION 5. Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including a Chairman
of the Board, one or more Chairmen, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner or the President may from time to time elect. Any two or more offices may be held by the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold office at the pleasure of the Board or
the General Partner. The Board, the General Partner or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the General Partner or the President, and who shall have
such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner or the affirmative vote of at least a majority
of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions of the
Board or the General Partner are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or General Partner to the contrary, the
President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior available officer
appointed by the Board or the General Partner shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or her and shall exercise such
powers as may be granted to him or her by the General Partner, the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner or the President to the contrary, the any Senior Vice President shall have
the power to vote all securities held by the Partnership and to issue proxies therefor.
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iii)
The Secretary.
The Secretary shall give, or cause to be given, a notice as required
of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as the Board may direct, a book of minutes of all meetings and actions of
Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings, the number of shares
present or represented at shareholders’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the General Partner or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of the Partnership funds and securities and shall keep or cause to be kept full
and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of the Partnership in
depositories designated by the General Partner or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner or the Board.
v)
The Chairmen.
Each Chairman, if any, shall perform such duties as shall be assigned, and shall exercise such powers as may be
granted to him or her by the General Partner or the Board.
SECTION 6.
Partners.
(a) The Partners of the Partnership shall be set forth on
Exhibit A
hereto. Other persons may be admitted as Partners from time to time
pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and obligations of the
Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any
of its affiliates, partners, members, directors, managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business
ventures of any kind or character whatsoever. Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect
ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Percentage Interests.
Peachtree has contributed all of its right, title and interest in and to all of its assets
constituting the cable television systems serving , Georgia to the capital of the Partnership in exchange for a limited partner
interest. The Percentage Interests or number of partnership units held by each Partner are as set forth in
Exhibit A
attached hereto.
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SECTION 8.
Distributions.
The Partnership may from time to time distribute to the Partners
such amounts in cash and other assets as shall be determined by the General Partner. Each such distribution, including liquidating distributions, shall be divided among the Partners in accordance with their Percentage Interests.
SECTION 9.
Allocations.
The profits and losses of the Partnership shall be allocated to the Partners in accordance with their
Percentage Interests or number of partnership units.
SECTION 10.
Dissolution; Winding Up.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the Partners or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner shall immediately commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Partnership, the General Partner may take any and all actions that they determine in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to (i) causing
written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against
the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed
that a reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner to minimize the losses that may result from a
liquidation.
SECTION 11.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage,
exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person without the prior written consent of each of the other Partners;
provided, however,
that this Section 11 shall not restrict
the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner. Upon the transfer of a member’s partnership interest, the General Partner shall provide notice of such
transfer to each of the other Partners and shall amend
Exhibit A
hereto to reflect the transfer.
SECTION 12.
Admission of
Additional Partners.
The admission of additional partners to the Partnership shall be accomplished by the amendment of this Agreement and, if required by the Act.
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SECTION 13.
Tax Matters.
The Partners agree that it is intended that the Partnership shall
be treated as a partnership for purposes of United States federal, state and local income tax laws, and further agree not to take any position or make any election, in a tax return or otherwise, inconsistent therewith. The “Tax Matters
Partner” of the Partnership for purposes of section 6231(a)(7) of the Internal Revenue Code of 1986, as amended, shall be as set forth in
ExhibitA
, attached hereto. The Tax Matters Partner shall have the power to manage and control, on
behalf of the Partnership, any administrative proceeding at the Partnership level with the Internal Revenue Service relating to the determination of any item of Partnership income, gain, loss, deduction or credit for federal income tax purposes.
SECTION 14.
Exculpation and Indemnification.
(a) Neither the Partners, the General Partner, the directors, their affiliates, nor any person who at any time shall serve, or shall have
served, as a director, officer, employee or other agent of any member or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “Specified Agent”) shall be liable,
in damages or otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts
or omissions performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that
such course of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of
the debts and liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein; provided, however, that
the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought under the
Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any such
Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such Partner’s
affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not constitute bad
faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
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(c) The termination of any claim, action, suit or proceeding by judgment, order or settlement
shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d) Any such indemnification under this Section 14 shall be recoverable only out of the assets of the Partnership and not from the
Partners.
SECTION 15.
Miscellaneous.
(a) A Partner’s limited partnership interest may be evidenced by a certificate of partnership interest executed by the General Partner or
an officer and in substantially the form attached hereto as
Exhibit B
(or in such other form as the General Partner may approve).
(b) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth herein may be
waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and assigns.
(d) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts
of law principles that would require the application of the laws of any other jurisdiction.
(e) In the event that any provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS, LLC
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By:
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/s/ Curtis S. Shaw
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Curtis S. Shaw
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Senior Vice President
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PEACHTREE CABLE TV, INC.
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By:
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/s/ Curtis S. Shaw
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Curtis S. Shaw
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Senior Vice President
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EXHIBIT A
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Partner Name
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Number and Type of Units
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Charter Communications, LLC
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.1 General Partner
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Peachtree Cable TV, Inc.
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99.9 Limited Partner
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Tax Matters Partner
Charter Communications, LLC
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EXHIBIT B
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Exhibit 3.283
CERTIFICATE OF FORMATION
OF
PEACHTREE CABLE TV,
LLC
This Certificate of Formation of Peachtree Cable TV, LLC is being duly executed and filed by the undersigned, as an authorized
person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
FIRST: The name of the limited liability company is Peachtree Cable TV, LLC.
SECOND: The address of its registered office in the State of Delaware is 30 Old Rudnick Lane, Dover, Delaware, 19901, County of
Kent. The name of its registered agent at such address is CorpAmerica, Inc.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation of Peachtree Cable TV, LLC this 29
th
day of January, 1999.
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/s/ Marcy A. Lifton
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Marcy A. Lifton, Authorized Person
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Peachtree Cable TV L.P.
12444 Powerscourt Drive
Suite 400
St. Louis,
Missouri 63131-3660
February 1, 1999
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To:
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Delaware Secretary of State
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Re:
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Peachtree Cable TV, LLC
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Gentlemen and Ladies:
This letter shall constitute the consent of the undersigned limited partnership to the use of the name “Peachtree Cable TV, LLC” by
CorpAmerica, Inc., the service company engaged by the law firm of Irell & Manella LLP, in the formation of a new Delaware limited liability company for which the Certificate of Formation is submitted herewith.
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Very truly yours,
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Peachtree Cable TV, L.P.
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By:
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Charter Communications, LLC,
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its general partner
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President
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CERTIFICATE OF MERGER OF
PEACHTREE CABLE TV, INC.
a Nevada corporation
INTO
PEACHTREE
CABLE TV, LLC
a Delaware limited liability company
It is hereby certified that:
1. The constituent entities participating in the merger are:
(i) Peachtree Cable TV, Inc., a Nevada corporation
(ii) Peachtree Cable TV, LLC, a Delaware limited liability company.
2. An Agreement of Merger has been approved and executed by each of the constituent entities in accordance with the provisions of Section
18-209 of the Delaware Limited Liability Company Act.
3. The name of the surviving limited liability company is Peachtree Cable TV, LLC,
a Delaware limited liability company.
4. The executed Agreement of Merger is on file at the office of Peachtree Cable TV, LLC located at
the following address:
12444 Powerscourt Drive
Suite 400
St. Louis, Missouri
63131
5. A copy of the Agreement of Merger will be furnished by Peachtree Cable TV, LLC, on request and without cost, to any member of
Peachtree Cable TV, LLC or to any stockholder of Peachtree Cable TV, Inc.
IN WITNESS WHEREOF, Peachtree Cable TV, LLC has caused this Certificate to be executed by an
Authorized Person thereof this 11th day of March, 1999.
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PEACHTREE CABLE TV, LLC
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By:
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/s/ Marcy A. Lifton
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Marcy A. Lifton, Authorized Person
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– 2 –
Exhibit 3.284
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
PEACHTREE CABLE TV,
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Communications, LLC, a Delaware limited liability company (“CCLLC”), as the sole member of Peachtree Cable TV, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior Agreement”); and
WHEREAS, CCLLC, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be
Peachtree Cable TV, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
2
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCLLC, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
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(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
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(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCLLC is the sole Member. CCLLC is not required to make any capital contribution to the Company; however, CCLLC may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be
appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury
6
Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not
be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCLLC shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern
their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCLLC is the sole member of the Company, CCLLC’s Percentage Interest
shall be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
7
that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
8
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
10
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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EXHIBIT B
Member
Charter Communications, LLC
14
Exhibit 3.285
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Phone Transfers (AL), LLC
SECOND. The purpose of the company is to engage in any lawful act
or activity for which a limited liability company may be organized
under the Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.286
LIMITED LIABILITY COMPANY AGREEMENT
OF
Phone Transfers
(AL), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30, 2014
by CC FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”)
,
as the member of Phone Transfers (AL), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H :
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “
Act
”)
.
Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Phone Transfers (AL), LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”
;
or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4
. Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation
(
“
CCI
”)
,
or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”)
.
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company
in such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is
a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any
Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(
“
Intercompany Indebtedness
”)
,
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company
funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the
name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are
not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section
6
,
are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of
the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7
. Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
8
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded
entity for United States federal tax purposes. So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be disregarded as an entity separate
from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a
partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate
book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and
Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the
Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall
engage, or shall have engaged, in activities on behalf of the Company (a
“
Specified Agent
”
) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall
take any action against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this
Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and
within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining
after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall
be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated
in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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|
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|
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COMPANY
|
|
|
|
Phone Transfers (AL
)
, LLC
|
|
By:
|
|
Charter Communications, Inc., its Manager
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|
|
|
|
By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel and Assistant Corporate Secretary
|
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MEMBER
|
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CC FIBERLINK, LLC
|
|
By:
|
|
Charter Communications, Inc., its Manager
|
|
|
|
|
By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel and Assistant Corporate Secretary
|
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|
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MANAGER
|
|
|
|
Accepting its appointment as Manager
|
|
CHARTER COMMUNICATIONS, INC.
|
|
|
|
|
By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
|
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President and Chief Executive Officer
|
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
|
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John Bickham
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Executive Vice President, Chief Operating Officer
|
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
|
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Richard R. Dykhouse
|
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Executive Vice President, General Counsel and Corporate Secretary
|
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Thomas Adams
|
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
|
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
|
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
|
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President, Charter Media
|
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Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
|
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Rocky Boler
|
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Senior Vice President, Customer Care
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Jay E. Carlson
|
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Senior Vice President, Chief Information Officer
|
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Kathleen A. Carrington
|
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Senior Vice President, Corporate Services
|
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Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
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Richard J. DiGeronimo
|
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Senior Vice President, Product and Strategy
|
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Alexander Dudley
|
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Senior Vice President, Communications
|
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Lawrence N. Eleftheri
|
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Senior Vice President, Media Sales
|
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Charles Fisher
|
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Senior Vice President, Corporate Finance
|
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Ronald J. Hartz
|
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Senior Vice President, Financial Planning and Analysis
|
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Keith R. Hayes
|
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Senior Vice President, Network Operations
|
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Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
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Joseph Leonard
|
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Senior Vice President, Marketing and Creative Strategy
|
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Lawrence R. Martell
|
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Senior Vice President, Software Architecture and Development
|
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James F. McGann, Jr.
|
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Senior Vice President, Charter Business
|
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
|
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Senior Vice President, Commercial Operations
|
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
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Jay Rolls
|
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Senior Vice President, Chief Technology Officer
|
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Allan Samson
|
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Senior Vice President, Marketing
|
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Gary Schanman
|
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Senior Vice President, Video Products
|
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Ernest Richard Schultz
|
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Senior Vice President, Sales and Retention
|
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Allan Singer
|
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Senior Vice President, Programming
|
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Daniel J. Bollinger
|
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Vice President, Associate General Counsel, and Assistant
|
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Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
CC FIBERLINK, LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
|
|
|
|
|
14
Exhibit 3.287
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Phone Transfers (CA), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized
under the Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808. The name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.288
LIMITED LIABILITY COMPANY AGREEMENT
OF
Phone Transfers
(CA), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30, 2014
by CCO FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of Phone Transfers (CA), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State
of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of
the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Phone Transfers (CA), LLC. The business of the Company shall be conducted under
such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the
Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest
that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check,
draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts,
liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company
in such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is
a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate
of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000), provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled
by or under common control with the Company
(
“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers
.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall
hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board,
or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required
of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors
and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company
funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the
name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are
not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-l(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may
be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue
of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of
the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures
of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by Percentage
Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage Interests” will
include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as
shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating
distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account
Balance”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
8
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a
disregarded entity for United States federal tax purposes. So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be disregarded as an entity
separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as
a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate
book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and
Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the
Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall
engage, or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action
against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of
authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge
of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by
judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad
faith, willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under
this Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the
Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any
Member or other person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith
reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise
existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall
be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated
in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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Phone Transfers (CA), LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MEMBER
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CCO FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
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CCO FIBERLINK, LLC
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100
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%
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Total
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100
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%
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14
Exhibit 3.289
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Phone Transfers (GA), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808. The name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.290
LIMITED LIABILITY COMPANY AGREEMENT
OF
Phone Transfers
(GA), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”
)
is entered into as of
May 30, 2014 by CC FIBERLINK, LLC, a Delaware limited liability company (the
“
Member
”),
as the member of Phone Transfers (GA), LLC, a Delaware limited liability company (the
“
Company
”).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“
Manager
”)
desires to form a limited liability company under the
laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the
Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Phone Transfers (GA), LLC. The business of the Company shall be conducted under such name or
any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service
of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(“
Intercompany Indebtedness
”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a
“
Specified Agent
”
)
shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against
such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of
authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge
of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule,
the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule
is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a
limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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Phone Transfers (GA), LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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|
/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MEMBER
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CC FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
|
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
|
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
|
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
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CC FIBERLINK, LLC
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100
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%
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Total
|
|
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100
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%
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14
Exhibit 3.291
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Phone Transfers (NC), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.292
LIMITED LIABILITY COMPANY AGREEMENT
OF
Phone Transfers
(NC), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”)
is entered into as of
May 30, 2014 by CCO FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of Phone Transfers (NC), LLC, a Delaware limited liability company (the “
Company
”).
WITNESSETH:
WHEREAS, Charter
Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members
with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
e
t.
seq
., as amended from time to time (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall
be Phone Transfers (NC), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“Vote”
) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(
“Intercompany Indebtedness”
),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and
its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income
tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K
of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a
“Specified Agent”
) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule,
the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule
is modified or negated accordingly. For purposes of this Section 15(h),
“Default Rule”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited
liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
|
|
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|
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COMPANY
Phone Transfers (NC), LLC
|
|
By: Charter Communications, Inc., its Manager
|
|
|
|
|
By:
|
|
/s/ Daniel J. Bollinge
r
|
|
|
|
Daniel J. Bollinge
r
|
|
|
|
Vice President, Associate General Counsel and Assistant Corporate Secretary
|
|
|
|
MEMBER
CCO FIBERLINK, LLC
|
|
By: Charter Communications, Inc., its Manager
|
|
|
|
|
By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel and Assistant Corporate Secretary
|
|
|
|
MANAGER
|
|
|
|
Accepting its appointment as Manager
|
|
CHARTER COMMUNICATIONS, INC.
|
|
|
|
|
By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel and Assistant Corporate Secretary
|
12
EXHIBIT A
OFFICERS
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|
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Thomas M. Rutledge
|
|
President and Chief Executive Officer
|
|
Christopher L. Winfrey
|
|
Executive Vice President and Chief Financial Officer
|
|
John Bickham
|
|
Executive Vice President, Chief Operating Officer
|
|
Donald F. Detampel, Jr.
|
|
Executive Vice President and President, Commercial Services
|
|
Richard R. Dykhouse
|
|
Executive Vice President, General Counsel and Corporate Secretary
|
|
Thomas Adams
|
|
Executive Vice President, Field Operations
|
|
Jonathan Hargis
|
|
Executive Vice President, Chief Marketing Officer
|
|
Kathleen Mayo
|
|
Executive Vice President, Customer Operations
|
|
James Blackley
|
|
Executive Vice President, Engineering and Information Technology
|
|
Catherine C. Bohigian
|
|
Executive Vice President, Government Affairs
|
|
David Scott Weber
|
|
Executive Vice President, Network Operations
|
|
James M. Heneghan
|
|
President, Charter Media
|
|
Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
|
|
Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
|
|
Rocky Boler
|
|
Senior Vice President, Customer Care
|
|
Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
|
|
Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
|
|
Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
Richard J. DiGeronimo
|
|
Senior Vice President, Product and Strategy
|
|
Alexander Dudley
|
|
Senior Vice President, Communications
|
|
Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
|
|
Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
Ronald J. Hartz
|
|
Senior Vice President, Financial Planning and Analysis
|
|
Keith R. Hayes
|
|
Senior Vice President, Network Operations
|
|
Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
|
Lawrence R. Martell
|
|
Senior Vice President, Software Architecture and Development
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
Allan Samson
|
|
Senior Vice President, Marketing
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
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Allan Singer
|
|
Senior Vice President, Programming
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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|
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Members
|
|
Economic Interest
Percentage
|
|
|
CCO FIBERLINK, LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
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Total
|
|
|
100
|
%
|
|
|
|
|
|
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14
Exhibit 3.293
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Phone Transfers (TN), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808. The name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation this 30th day of May, 2014.
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|
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BY:
|
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/s/ Thomas E. Proost
|
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Thomas E. Proost
|
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Authorized Person
|
Exhibit 3.294
LIMITED LIABILITY COMPANY AGREEMENT
OF
Phone Transfers
(TN), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”)
is entered into as of
May 30, 2014 by CC FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of Phone Transfers (TN), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”
). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall
be Phone Transfers (TN), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (
“CCI”
), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (
“Intercompany Indebtedness”
), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a
“Specified Agent”
) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“Default Rule”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of
a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
|
|
Phone Transfers (TN), LLC
By: Charter Communications, Inc., its Manager
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By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel
and Assistant Corporate Secretary
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MEMBER
|
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CC FIBERLINK, LLC
By:
Charter Communications, Inc., its Manager
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By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel
and Assistant Corporate Secretary
|
|
|
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MANAGER
|
|
Accepting its appointment as Manager
CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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|
|
|
Daniel J. Bollinger
|
|
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|
Vice President, Associate General Counsel
and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
|
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Executive Vice President, Chief Operating Officer
|
|
Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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|
Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
|
|
Executive Vice President, Field Operations
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Jonathan Hargis
|
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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|
Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
|
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President, Charter Media
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Kevin D. Howard
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|
Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
|
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
|
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
|
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
|
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
|
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
|
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Senior Vice President, Commercial Operations
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
|
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Senior Vice President, Marketing
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Gary Schanman
|
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
|
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Senior Vice President, Programming
|
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Daniel J. Bollinger
|
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
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CC FIBERLINK, LLC
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|
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100
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%
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|
|
|
|
|
|
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Total
|
|
|
100
|
%
|
|
|
|
|
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14
Exhibit 3.295
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Phone Transfers (VA), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be
organized under the Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware
19808. The name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has
executed this Certificate of Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
|
Exhibit 3.296
LIMITED LIABILITY COMPANY AGREEMENT
OF
Phone Transfers
(VA), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement”
)
is entered into as of
May 30, 2014 by CCO FIBERLINK, LLC, a Delaware limited liability company (the
“Member”
),
as the member of Phone Transfers (VA), LLC, a Delaware limited liability company (the
“Company”
).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the
“Manager”
)
desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among
the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms
and provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”)
.
Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall
be Phone Transfers (VA), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a) Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation
(
“CCI”
),
or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“Manager”
).
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(“Intercompany Indebtedness”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers
.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests
. The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution
;
Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B,
in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule,
the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule
is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a
limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
Phone
Transfers
(VA), LLC
By: Charter
Communications, Inc., its Manager
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By:
|
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/s/ Daniel J. Bollinger
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|
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MEMBER
CCO FIBERLINK, LLC
By: Charter Communications, Inc., its
Manager
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By:
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/s/ Daniel J. Bollinger
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|
|
Daniel J. Bollinger
|
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|
Vice President, Associate General Counsel and Assistant Corporate Secretary
|
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|
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MANAGER
Accepting its appointment as Manager
CHARTER COMMUNICATIONS,
INC.
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By:
|
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/s/ Daniel J. Bollinger
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|
|
|
Daniel J. Bollinger
|
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
|
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President and Chief Executive Officer
|
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
|
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John Bickham
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Executive Vice President, Chief Operating Officer
|
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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|
Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
|
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
|
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
|
|
|
CCO FIBERLINK, LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
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Total
|
|
|
100
|
%
|
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14
Exhibit 3.297
CERTIFICATE OF FORMATION
OF
RENAISSANCE MEDIA
LLC
This Certificate of Formation of Renaissance Media LLC (the “
Company
”), dated, November 24, 1997 is being
duly executed and filed by Morgan Stanley Capital Partners III, Inc., as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6
Del. C.
§18-101,
et seq
.).
FIRST. The name of the limited liability company formed hereby is Renaissance Media LLC.
SECOND. The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 1013 Centre Road,
City of Wilmington, County of New Castle, Delaware 19805.
THIRD. The name and address of the registered agent for service of process on
the Company in the State of Delaware is Corporation Service Company, 1013 Centre Road, City of Wilmington, County of New Castle, Delaware 19805.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.
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MORGAN STANLEY CAPITAL PARTNERS III, INC.
|
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By:
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/s/ Lawrence B. Sorrel
|
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Name:
|
|
Lawrence B. Sorrel
|
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Title:
|
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Managing Director
|
[ILLEGIBLE]
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
RENAISSANCE MEDIA LLC
RENAISSANCE MEDIA LLC
, a limited liability company organized and existing under and by virtue of the Limited Liability Company
Act of the State of Delaware, DOES HEREBY CERTIFY:
1. Article 2 of the Certificate of Formation of the Limited Liability Company is
hereby amended as follows:
: The address of its registered office in the State of Delaware is
30 Old
Rudnick Lane, Dover, DE 19901, County of Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
2.
That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 18-202 of Title 6 of the Delaware Code.
IN WITNESS WHEREOF, said company has caused this Certificate to be signed by an authorized person this 5
th
day of May, 1999.
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/s/ Marcy Lifton
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Name:
|
|
Marcy Lifton
|
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Authorized Person
|
Exhibit 3.298
FIFTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
RENAISSANCE MEDIA,
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Communications, LLC, a Delaware limited liability company (“CCO”), as the sole member of Renaissance Media, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of November 15, 2006, as amended (the “Prior Agreement”); and
WHEREAS, CCLLC, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be
Renaissance Media, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
2
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCLLC, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
3
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
4
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCLLC is the sole Member. CCLLC is not required to make any capital contribution to the Company; however, CCLLC may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be
appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury
6
Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not
be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCLLC shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern
their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCLLC is the sole member of the Company, CCLLC’s Percentage Interest
shall be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
7
that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
8
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
10
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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12
EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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13
EXHIBIT B
Member
Charter Communications, LLC
14
Exhibit 3.299
CERTIFICATE OF FORMATION
OF
RIFKIN ACQUISITION PARTNERS,
LLC
1. The name of the limited liability company is Rifkin Acquisition Partners, LLC.
2. The address of its registered office in the State of Delaware is 30 Old Rudnick Lane, in the City of Dover, County of Kent. The name
of its registered agent at such address is CorpAmerica, Inc.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of Rifkin Acquisition Partners, LLC this 28
th
day of May, 1999.
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/s/ Colleen M. Hegarty
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Colleen M. Hegarty, Authorized Person
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CERTIFICATE OF MERGER OF
RIFKIN ACQUISITION PARTNERS, L.L.L.P
a Colorado Registered Limited Liability Partnership
WITH AND INTO
RIFKIN
ACQUISITION PARTNERS, LLC
a Delaware Limited Liability Company
It is hereby certified that:
1. The
constituent entities participating in the merger are:
(i) Rifkin Acquisition Partners, L.L.L.P., a Colorado
Registered Limited Liability Limited Partnership, and
(ii) Rifkin Acquisition Partners, LLC, a Delaware Limited
Liability Company.
2. An Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of
the constituent entities in accordance with the provisions of subsection (b) of Section 18-209 of the Delaware Limited Liability Company Act.
3. The name of the surviving entity is Rifkin Acquisition Partners, LLC, a Delaware Limited Liability Company.
4. The Certificate of Formation of Rifkin Acquisition Partners, LLC shall be the Certificate of Formation of the surviving entity.
5. The executed Agreement and Plan of Merger is on file at the principal place of business of Rifkin Acquisition Partners, LLC located
at the following address:
360 South Monroe Street
Suite 600
Denver, Colorado
80209
6. A copy of the Agreement and Plan of Merger will be furnished by Rifkin Acquisition Partners, LLC, on request and without
cost, to any person holding a partnership or membership interest in Rifkin Acquisition Partners, L.L.L.P. or Rifkin Acquisition Partners, LLC.
IN WITNESS WHEREOF, Rifkin Acquisition Partners, LLC has caused this Certificate to be executed
by a duly authorized person thereof this 14th day of September, 1999.
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RIFKIN ACQUISITION PARTNERS, LLC
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By:
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Charter Communications Operating, LLC.
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Its:
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Sole Member
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President and Assistant Secretary
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STATE OF DELAWARE
CERTIFICATE OF AMENDMENT CHANGING ONLY THE
REGISTERED OFFICE OR REGISTERED AGENT OF A
LIMITED LIABILITY COMPANY
The limited liability
company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The name of the limited liability company is
RIFKIN ACQUISITION PARTNERS, LLC
.
2. The Registered Office of the limited liability company in the State of Delaware is changed to
2711 Centerville Road, Suite
400
(street), in the City of
Wilmington
, Zip Code
19808
. The name of the Registered Agent at such address upon whom process against this limited liability company may be served is
Corporation Service Company
.
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By:
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/s/ Paul J. Rutterer
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Authorized Person
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Name:
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/s/ Paul J. Rutterer
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Print or Type
Vice President, Associate General Counsel, and Assistant Secretary
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Exhibit 3.300
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
RIFKIN ACQUISITION
PARTNERS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Communications Operating, LLC, a Delaware limited liability company (“CCO”), as the sole member of Rifkin Acquisition Partners, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior Agreement”); and
WHEREAS, CCO, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Rifkin
Acquisition Partners, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
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SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCO, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
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(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
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(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCO is the sole Member. CCO is not required to make any capital contribution to the Company; however, CCO may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv).
6
The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit
upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCO shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement. If
an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern their
relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCO is the sole member of the Company, CCO’s Percentage Interest shall
be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
7
that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
8
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
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(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS OPERATING, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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13
EXHIBIT B
Member
Charter Communications Operating, LLC
14
Exhibit 3.301
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Robin Media Group, LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this Certificate
shall be December 31, 2015 at 7:00 p.m. Eastern Time.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22
nd
day of December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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CERTIFICATE OF MERGER OF
RMG TRANSFERS III, LLC
WITH AND INTO
ROBIN
MEDIA GROUP, LLC
To the Secretary of State
State
of Delaware
The undersigned, Robin Media Group, LLC, a Delaware limited liability company, does hereby certify:
FIRST. That the name and jurisdiction of organization of each of the constituent entities of the merger is as follows:
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NAME
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JURISDICTION OF FORMATION
OR ORGANIZATION
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Robin Media Group, LLC
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Delaware
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RMG Transfers III, LLC
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Delaware
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SECOND. That an agreement and plan of merger among the constituent entities has been approved and executed by
each of the constituent entities in accordance with the requirements of Section 18-209 of the Delaware Limited Liability Company Act.
THIRD. That the name of the surviving entity of the merger is Robin Media Group, LLC (the “Surviving Entity”), and the name of the
limited liability company being merged into the Surviving Entity is RMG Transfers III, LLC.
FOURTH. That the certificate of formation of
the Surviving Entity as in effect upon the merger shall be its certificate of formation.
FIFTH. That the executed agreement and plan of
merger is on file at the principal place of business of the Surviving Entity located at 12405 Powerscourt Drive, St. Louis, Missouri 63131.
SIXTH. That a copy of the agreement and plan of merger will be furnished by the Surviving Entity, on request and without cost, to any member
of, or any person holding an interest in, any constituent entity of the merger.
SEVENTH. That this Certificate of Merger shall become
effective at 12:01 a.m. on January 1, 2016.
IN WITNESS WHEREOF, Robin Media Group, LLC, the Surviving Entity, has caused this Certificate of
Merger to be executed by an authorized person on its behalf the 31st day of December, 2015.
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ROBIN MEDIA GROUP, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Exhibit 3.302
LIMITED LIABILITY COMPANY AGREEMENT
OF
Robin Media Group,
LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“Agreement”
)
is entered into as of
December 31, 2015 by Charter Communications, LLC, a Delaware limited liability company (the
“Member”
),
as the member of Robin Media Group, LLC, a Delaware limited liability company (the
“Company”
).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“Manager”
)
desires to form a limited liability company under the laws of
the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of
the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”
).
Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Robin Media Group, LLC. The business of the Company shall be conducted under such name
or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each Unit (as defined in Section 7) held by
such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto)
which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION
2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes
and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its successor-in-interest that acquires
directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company
in such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is
a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any
Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(“Intercompany Indebtedness”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company
funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the
name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
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(e)
Severability.
In the event that any provision contained in this Agreement shall
be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“Default Rule”
shall mean a rule stated
in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
ROBIN MEDIA GROUP, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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MEMBER
CHARTER COMMUNICATIONS, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 1 of 2
Robin Media Group, LLC
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 2 of 2
Robin Media Group, LLC
EXHIBIT A
Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video
Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic Interest
Percentage
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CHARTER COMMUNICATIONS, LLC
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100
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%
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Exhibit 3.303
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
Scottsboro TV Cable, LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH. The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
FIFTH. This effective date and time of this Certificate
shall be December 31, 2015 at 10:00 p.m. Eastern Time.
[signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation this 22
nd
day of December, 2015
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Authorized Person
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Exhibit 3.304
LIMITED LIABILITY COMPANY AGREEMENT
OF
Scottsboro TV
Cable, LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“Agreement”
)
is entered into as of
December
31, 2015
by Falcon First Cable of the Southeast, LLC, a Delaware limited liability company (the
“Member”)
,
as the member of Scottsboro TV Cable, LLC, a Delaware limited liability company (the
“Company”
).
W I T N E S S E T H:
WHEREAS, Charter Communications, Inc. (the
“Manager”)
desires to form a limited liability company under the laws of the State
of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance thereof and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of
the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“
Act
”). Except as expressly provided herein, the rights and obligations of the Member (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Scottsboro TV Cable, LLC. The business of the Company shall be conducted under such name
or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the
“Member”
;
or if there are more than one, the
“Members”
)
shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“Vote”)
for each Unit (as
defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this
Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION
2. Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the Company
is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
2
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation
(“CCI”),
or its successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“Manager”
).
CCI shall be the Manager until a
simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person”
refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised
by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed
as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect,
remove or replace directors and officers of the Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or
resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable
law, the Manager shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any
Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent,
take any action which it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of
its duties to the Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably
believes to be in the best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the
debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(“
Intercompany Indebtedness
”),
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required
by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of
being a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
8
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded
entity for United States federal tax purposes. So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be disregarded as an entity separate
from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a
partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate
book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and
Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company,
their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage,
or shall have engaged, in activities on behalf of the Company (a
“Specified Agent”)
shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against
such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of
authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge
of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall
be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“Default Rule”
shall mean a rule stated
in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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SCOTTSBORO TV CABLE, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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MEMBER
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FALCON FIRST CABLE OF THE SOUHTEAST, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 1 of 2
Scottsboro TV Cable, LLC
Accepting its appointment as the Company’s Manager subject to the provisions of this
Agreement and agreeing to be bound by this Agreement:
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas M. Degnan
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Name:
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Thomas M. Degnan
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Title:
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Senior Vice President – Finance and Corporate Treasurer
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Signature Page 2 of 2
Scottsboro TV Cable, LLC
EXHIBIT A
Officers
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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The business address for all officers is 400 Atlantic Street, Stamford CT, 06901
EXHIBIT B
Economic Interests
As
of December 31, 2015
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Members
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Economic Interest
Percentage
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Falcon First Cable of the Southeast, LLC
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100
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%
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Exhibit 3.305
CERTIFICATE OF LIMITED PARTNERSHIP
OF
THE HELICON GROUP, L.P.
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act, hereby certifies
that:
1. The name of the limited partnership is The Helicon Group, L.P. (the “Partnership”).
2. The Partnership’s registered office in the state of Delaware is 32 Lookerman square, suite L-100, city of Dovar, County of Kent, state
of Delaware 19901. The name of its registered agent at such address is The prentice-Hall corporation system, Inc.
3. The name and address
of the sole general partner are:
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Name
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Address
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Baua Investments, Inc.
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630 Palisadas Avenue
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Englewood Cliffs, (New Jersey 07632
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IN WITNESS WHEREOF, the undersigned, being the sole general partner of the Partnership, has caused this
certificate of Limited Partnership to be signed on August 2, 1993.
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BAUM INVESTMENTS, INC.
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By:
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/s/ Theodore B. Baum
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Name:
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Theodore B. Baum
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Title:
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President
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P.3
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CERTIFICATE TO RESTORE TO GOOD STANDING
A DELAWARE LIMITED PARTNERSHIP
PURSUANT TO TITLE 6, SEC. 17-1109
1.
Name of Limited Partnership: The Helicon Group, L. P.
2. Date of original filing with Delaware Secretary of State August 11,1993
I, Herbert J. Roberts, Senior Vice President of Baum Investments, Inc., General Partner of the above named limited partnership do hereby certify that this
limited partnership is paying all annual taxes, penalties and interest due to the State of Delaware.
I do hereby request this limited partnership be
restored to Good Standing.
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Baum Investments, Inc.
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General Partner
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/s/ Herbert J. Roberts
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Herbert J. Roberts
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Senior Vice President
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Certific
Certificate of Amendment
to the
Certificate of Limited
Partnership
of
The Helicon
Group, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of The Helicon Group, L.P. pursuant to the
provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby Certify as follows:
First: The name of the Limited Partnership is The Helicon Group, L.P.
Second: The Certificate of Limited Partnership shall be amended to change the registered agent upon whom process may be served from The
Prentice-Hall Corporation System, Inc. to The Corporation Trust Company, Corporation Trust Center, 1209 Orange St., Wilmington, DE, 19801.
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on the 29th day of October 1997.
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BY:
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/s/ Theodore B. Baum
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Theodore B. Baum
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President and CEO
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BY:
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Baum Investments, Inc.
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General Partner
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FROM CORPORATION TRUST CO. 1-302-555-5049
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CERTIFICATE TO RESTORE TO GOOD STANDING
A DELAWARE LIMITED PARTNERSHIP
PURSUANT TO TITLE 6, SEC. 17-1109
Name of
Limited Partnership
The Helicon Group, L.P
.
Date of original filing with Delaware Secretary of State
August 11, 1993.
I,
Richard A. Hainbach,
Secretary of Baum Investments, Inc., the General Partner of the above named limited partnership do hereby certify that this
limited partnership is paying all annual taxes, penalties and interest due to the State of Delaware.
I do hereby request this limited partnership be
restored to Good Standing.
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BAUM INVESTMENTS, INC.
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/s/ Richard A. Hainbach
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General Partner
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By: Richard A. Hainbach Secretary
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CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF
LIMITED PARTNERSHIP
OF
THE HELICON GROUP, L.P.
THE HELICON GROUP, L.P.
, a limited partnership organized and existing under and by virtue of the Revised Uniform Limited
Partnership Act of the State of Delaware, DOES HEREBY CERTIFY:
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1.
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Article 2 of the Certificate of Limited Partnership is hereby amended as follows:
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: The address of its registered office in the State of Delaware is
30 Old Rudnick Lane, Dover, DE 19901, County of
Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
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2.
|
Article 3 of the Certificate of Limited Partnership is hereby amended as follows:
|
: The name
and address of the general partner of the Partnership is: Charter Helicon, LLC, 12444 Powerscourt Drive, Suite 100, St. Louis, Missouri 63131.
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3.
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That the aforesaid amendments were duly adopted in accordance with the applicable provisions of
Section 17-202
of the Revised Uniform Limited Partnership Act of the State of
Delaware.
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IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this 9th
day of December, 1999.
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CHARTER HELICON, LLC
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General Partner
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By:
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/s/ Marcy Lifton
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Marcy Lifton, Vice President
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CERTIFICATE OF MERGER
OF
HELICON CAPITAL CORP.
INTO
THE
HELICON GROUP, L.P.
Pursuant to Title 6, Sec. 17-211 of the Delaware Code, the undersigned surviving limited partnership submits the following
Certificate of Merger for filing and certifies that:
1. The name and jurisdiction of formation or organization of each of the
domestic limited partnership and corporation which are to merge are:
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Name
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Jurisdiction
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The Helicon Group, L.P.
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Delaware
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Helicon Capital Corp.
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Delaware
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2. An agreement of merger has been approved and executed by each of the domestic limited partnerships
and other business entities which are to merge.
3. The name of the surviving limited partnership is: The Helicon Group, L.P.
4. The agreement of merger is on file at a place of business of the surviving limited partnership which is located at 12444 Powerscourt
Drive, Suite 100, St. Louis, Missouri, 63131.
5. A copy of the agreement of merger will be furnished by the surviving limited
partnership on request and without cost, to any partner of any domestic limited partnership or any person holding an interest in any other business entity which is to merge.
IN WITNESS WHEREOF, this Certificate of Merger has been duly executed as of the
22
nd
day of
August
, 2000, and is being filed in accordance with Title 6, Sec. 17-211 by an authorized person of the surviving limited partnership in the merger.
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The Helicon Group, L.P.
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By:
|
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Charter Helicon, LLC, its General Partner
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By:
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/s/ Marcy Lifton
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|
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Marcy Lifton, Vice President
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Exhibit 3.306
AMENDMENT TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
THE HELICON GROUP,
L.P.
A DELAWARE LIMITED PARTNERSHIP
This Amendment to the Amended and Restated Limited Partnership Agreement of The Helicon Group, L.P., a Delaware limited partnership
(“
Company
”), is adopted effective as of June 19, 2003 by Charter Helicon, LLC, a Delaware limited liability company as the general partner, and Helicon Partners I, L.P., a Delaware limited partnership as the limited partner, with
reference to the following facts:
A. The Company is being operated pursuant to that certain Amended and Restated Limited Partnership
Agreement entered into and made effective as of November 30, 2001, by and between Charter Helicon, LLC and Helicon Partners I, L.P. (the “
LP Agreement
”). Unless otherwise defined, capitalized terms used herein have the meanings
assigned to them in the LP Agreement.
B. Section 14(c) of the LP Agreement provides that an amendment to the LP Agreement to incorporate
the changes made by this Amendment shall be effective as an amendment only if approved by a written instrument executed by each Partner. Charter Helicon, LLC and Helicon Partners I, L.P. are all of the Partners of the Company and desire to approve
the amendments to the LP Agreement made by this Amendment.
NOW, THEREFORE, the LP Agreement is hereby amended as follows:
1. Section 10 of the LP Agreement is amended and restated in its entirety to read as follows:
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage,
exchange or otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 10 shall not
restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership (i) to another Partner or its affiliates, or (ii) pursuant to the Loan Documents (as defined in that certain Credit
Agreement with Charter Communications Operating, LLC as the borrower, dated as of March 18, 1999, as amended and restated as of January 3, 2002, and as further amended and restated by the Second Amended and Restated Credit Agreement dated as of June
19, 2003, as it may be amended, supplemented, modified, restated, refunded, renewed, replaced or refinanced from time to time). Upon the transfer of a Partner’s partnership interest, the General Partner shall provide notice of such transfer to
each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
2. Section 14(b) of the LP Agreement is amended and restated in its entirety to read as follows:
(b)
Certificate of Partnership Interest
. A Partner’s partnership interest may be evidenced by a certificate of
partnership interest executed by the General Partner or an officer in such form as the General Partner may approve; provided that such certificate of partnership interest shall not bear a legend that causes such partnership interest to constitute a
security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
- 2 -
IN WITNESS WHEREOF, the undersigned have executed this Amendment, effective as of the date first
written above.
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CHARTER HELICON, LLC, a Delaware
limited liability company as the general partner
|
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By:
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/s/ Marcy A. Lifton
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|
|
Marcy A. Lifton
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|
|
Vice President
|
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HELICON PARTNERS I, L.P., a Delaware
limited partnership as the limited partner
|
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|
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By:
|
|
/s/ Marcy A. Lifton
|
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|
|
Marcy A. Lifton
|
|
|
|
Vice President
|
The Helicon Group, L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
THE HELICON GROUP,
L.P.,
A DELAWARE LIMITED PARTNERSHIP
This Amended and Restated Limited Partnership Agreement of THE HELICON GROUP, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”) is entered into as of November 30, 2001, by and between Charter Helicon, LLC, a Delaware limited liability company (“
Charter Helicon
”) as the general partner (“
General Partner
”), and
Helicon Partners I., L.P., a Delaware limited partnership, (“
Helicon Partners
”) as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of The Helicon Group,
L.P., a Delaware limited partnership (the “
Partnership
”).
WITNESSETH:
WHEREAS, (i) a Certificate of Limited Partnership for the Partnership was filed with the Delaware Secretary of State on August 10, 1993, (ii)
a Certificate of Amendment of the Certificate of Limited Partnership for the Partnership was filed with the Delaware Secretary of State on November 5, 1997, and (iii) a Certificate of Amendment to the Certificate of Limited Partnership for the
Partnership was filed with the Delaware Secretary of State on December 10, 1999 (the Certificate of Limited Partnership as amended by the Certificates of Amendment, the “
Certificate
”). This Agreement supersedes Limited Partnership
Agreement entered into November 3, 1993.
WHEREAS, Charter Helicon and Helicon Partners are all of the Partners of the Partnership and
desire to adopt and approve this Agreement as the limited partnership agreement of the Partnership to establish their rights and responsibilities and to govern their relationships.
NOW THEREFORE, in consideration of the terms and provisions set forth herein, the mutual benefits to be gained by the performance thereof and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1.
General.
(a)
Effective as of the date and time of filing of the Certificate in the office of the Delaware Secretary of State, the Partnership was formed as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et
seq
. (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be The Helicon Group, L.P., a Delaware limited
partnership”. The business of the Partnership shall be conducted under such name or any other name or names that the General Partner shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered
agent shall be as stated in the Certificate or as otherwise determined by the General Partner. The registered office or registered agent of the Partnership may be changed from time to time by the General Partner.
(d) The principal place of business of the Partnership shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the General
Partner may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the
date of the filing of the Certificate in the office of the Delaware Secretary of State and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or similar
laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner shall execute, deliver and file any certificates (and any amendments and/or
restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership is formed for the object and purpose of, and the nature of the business to be conducted by the
Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and
all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by General Partner.
Charter Helicon shall be the General Partner of the Partnership. Except as otherwise required by
applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the authority of, and the business, property and affairs of the Partnership shall be managed by,
or under the direction of, the General Partner.
The General Partner shall be authorized to elect, remove or replace directors and
officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner in the resolution or resolutions pursuant
to which such directors or officers were elected.
- 2 -
The General Partner shall have the authority to convert the Partnership into a limited liability
company and to take all actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by
applicable law, Charter Helicon, in its capacity as General Partner, shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on
behalf of the Partnership.
No annual or regular meetings of the General Partner or the Partners are required. The General Partner may, by
written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors.
i) Notwithstanding paragraph (a) above, the General Partner may delegate its power to manage the business of the Partnership to a Board of
Directors (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be done by a general partner of a
limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner. The rights and duties of the members of the Board may not be assigned or
delegated to any person or entity.
ii) Except as otherwise provided herein, members of the Board shall possess and may exercise all the
powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
iii) The number of directors shall be One, which number may be changed from time to time by the General Partner. The director shall be Carl
E. Vogel.
iv) Each director shall be appointed by the General Partner and shall serve in such capacity until the earlier of his
resignation, removal or replacement by the General Partner.
v) No director shall be entitled to any compensation for serving as a
director. No fee shall be paid to any director for attendance at any meeting of the Board; provided, however, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner shall be required to:
i) alter the primary purposes of the Partnership as set forth in Section 2;
ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
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iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause
the Partnership to engage in any business not authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
iv) enter into or amend any agreement which provides for the management of the business or affairs of the Partnership by a person other than
the General Partner;
v) change or reorganize the Partnership into any other legal form;
vi) amend this Agreement;
vii) approve a merger or consolidation with another entity;
viii) sell all or substantially all of the assets of the Partnership;
ix) change the status of the Partnership from one in which management is vested in the General Partner to one in which management is vested
in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
xiv) materially change any of the tax reporting positions or elections of the Partnership;
xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee
- 4 -
of indebtedness of) any company controlled by or under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any
otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the General Partner.
(d)
Board of Director Meetings.
i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time
be determined by the Board, but not less often than annually.
ii)
Special Meetings.
Special meetings of the Board may be called
by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of Partners holding a
majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
iii)
Telephonic
Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such meeting.
iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from
time to time until a quorum shall be present. Notice of such adjournment shall be given to any director not present at such meeting.
v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in
writing and such written consent is filed with the minutes of proceedings of the Board.
vi)
Board’s Duty of Care.
The
Board’s duty of care in the discharge of its duties to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under
similar circumstances, in the manner it reasonably believes to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any
act or omission believed in good faith to be within the scope of authority conferred by this Agreement or approved by the General Partner.
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SECTION 5.
Officers.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including a Chairman
of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner or the President may from time to time elect. Any two or more offices may be held by the same individual.
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and shall hold office at the pleasure of the Board or
the General Partner. The Board, the General Partner or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the General Partner or the President, and who shall have
such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner or the affirmative vote of at least a majority
of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any reason or for no reason.
(d)
Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions of the
Board or the General Partner are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or General Partner to the contrary, the
President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior available officer
appointed by the Board or the General Partner shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or her and shall exercise such
powers as may be granted to him or her by the General Partner, the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner or the President to the contrary, any Senior Vice President shall have the
power to vote all securities held by the Partnership and to issue proxies therefor.
iii)
The Secretary.
The Secretary shall give,
or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as the Board may direct, a book of
minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular
- 6 -
or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings,
and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the General Partner or the Board.
iv)
The Treasurer.
The Treasurer shall have custody of the Partnership funds and securities and shall keep or cause to be kept full
and accurate accounts of receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of the Partnership in
depositories designated by the General Partner or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner or the Board.
SECTION 6.
Partners.
(a)
The Partners of the Partnership shall be set forth on Schedule A hereto. Other persons or entities may be admitted as Partners from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and obligations of the Partnership, including any debts, liabilities and
obligations under a judgment, decree or order of a court.
(c) Neither a Partner nor any of its affiliates, partners, members, directors,
managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever.
Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other assets as shall be determined by the General Partner. Each such distribution, other than liquidating distributions, shall be
divided among the Partners in accordance with their number of partnership units (as set forth in Schedule A); provided, however, that a distribution (other than liquidating distributions) not divided in accordance with the number of partnership
units may be made if (i) the General Partner reasonably determines that such distribution does not result in any Partner receiving more than one hundred five percent (105%) of the amount such Partner would have received (on a cumulative basis)
if all distributions had been divided among the Partners in accordance with their number of partnership units, or (ii) the Partners unanimously consent. Liquidating distributions shall be divided among the Partners in accordance with their positive
capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-l(b)(2)(iv)), and such liquidating distributions shall be made by the end of the Partnership’s taxable year in which the
Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
- 7 -
SECTION 8.
Allocations.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in Schedule A).
(b) All allocations of Partnership income, gain, loss, deductions, and other items shall
be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic effect
under Treasury Regulations Section 1.704-1 (b)(2)(ii)(d). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of any limited dollar amount of
such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which this clause (i) is satisfied, such
Partner’s capital account shall be reduced for the items described in Treasury Regulations Sections 1.704-1 (b)(2)(ii)(d)(4), (5), and (6) and otherwise adjusted as provided in the Regulations related thereto), and (ii) a Partner who
unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1 (b)(2)(ii)(d)(4), (5), or (6) shall be allocated items of income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the preceding sentence (the
“Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory
Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the General Partner shall make such
offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account balance is, to the extent possible,
equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up
.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner shall immediately
- 8 -
commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In winding up the business and affairs of the Partnership, the General Partner
may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the
Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against the Partnership, (iii) the making of reasonable provisions
for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of
the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner to minimize the losses that may result from a liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or
otherwise) all or any part of his, her or its partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided, however,
that this Section 10 shall not restrict
the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General Partner shall provide
notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished by the amendment of this Agreement and, if required by the Act.
SECTION 12.
Tax Matters.
The Partners agree that it is intended that the Partnership shall be treated as a partnership for purposes of
United States federal, state and local income tax laws, and further agree not to take any position or make any election, in a tax return or otherwise, inconsistent therewith. The “Tax Matters Partner” of the Partnership for purposes of
section 6231(a)(7) of the Internal Revenue Code of 1986, as amended, shall be the General Partner. The Tax Matters Partner shall have the power to manage and control, on behalf of the Partnership, any administrative proceeding at the Partnership
level with the Internal Revenue Service relating to the determination of any item of Partnership income, gain, loss, deduction or credit for federal income tax purposes.
SECTION 13.
Exculpation and Indemnification
.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership.
- 9 -
Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts and
liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding; provided, however,
that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such Partner’s affiliates or any
Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not constitute bad faith, willful
misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any claim, action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the Partnership and not from
the Partners.
SECTION 14.
Miscellaneous
.
(a) If the General Partner, the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action on
behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of such
consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the General Partner may
approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in
- 10 -
exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding
upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the
invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- 11 -
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective of the date first
written above.
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CHARTER HELICON, LLC
Its
General Partner
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President
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HELICON PARTNERS I, L.P.
Its Limited Partner
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By:
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Title:
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Vice President
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SCHEDULE A
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Partner Name
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Number of Units
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Charter Helicon, LLC
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1 partnership units
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Helicon Partners I, L.P.
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99 partnership units
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Exhibit 3.307
CERTIFICATE OF FORMATION
OF
VISTA BROADBAND
COMMUNICATIONS, LLC
The undersigned, desiring to form a limited liability company pursuant to the provisions of the Delaware Limited
Liability Company Act (6 Del. C. §18-101, et seq.), hereby certifies as follows:
FIRST. The name of the limited liability company is
Vista Broadband Communications, LLC (the “LLC”)
SECOND. The name and address of the registered agent for service of process on
the LLC in the state of Delaware is The Corporation Trust Company, c/o Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation, as of the 18th Day of February, 1998.
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/s/ Stephanie Wexler Coutu
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Stephanie Wexler Coutu
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF
FORMATION
OF
VISTA BROADBAND COMMUNICATIONS, LLC
VISTA BROADBAND COMMUNICATIONS, LLC
a limited liability company organized and existing under and by virtue of the Limited
Liability Company Act of the State of Delaware, DOES HEREBY CERTIFY:
1. Article 2 of the Certificate of Formation of the Limited
Liability Company is hereby amended as follows:
: The address of its registered office in the State of Delaware is
30 Old Rudnick Lane, Dover, DE 19901, County of Kent.
The name of the registered agent at such address is
CorpAmerica, Inc.
2. That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Section 18-202 of Title 6 of the Delaware
Code.
IN WITNESS WHEREOF, said company has caused this Certificate to be signed by an authorized person this 19
th
day of November, 1999.
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/s/ Marcy Lifton
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Name:
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Marcy Lifton
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Authorized Person
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Exhibit 3.308
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
VISTA BROADBAND
COMMUNICATIONS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “Agreement”) is entered into as of
November 30, 2009 by Charter Communications, LLC, a Delaware limited liability company (“CCO”), as the sole member of Vista Broadband Communications, LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H:
WHEREAS,
the Company is governed by that certain Limited Liability Company Agreement dated as of June 19, 2003, as amended (the “Prior Agreement”); and
WHEREAS, CCLLC, as the sole member of the Company, wishes to amend and restate the Prior Agreement in compliance with the requirements of the
Joint Plan.
NOW, THEREFORE, in consideration of the terms and provisions set forth herein, the benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the party hereby agrees as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “Act”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection
with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Vista
Broadband Communications, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “Member”; or if there are more than one, the “Members”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “Vote”) for each one percentage point of Percentage
Interest (as defined in Section 7) held by such Member (totaling 100 Votes for all Members) (any fraction of such a percentage point shall be entitled to an equivalent fraction of a Vote). Any vote, approval, consent or ratification as to any
matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness
such vote, approval, consent or ratification of the Members.
Notwithstanding anything to the contrary in this Operating Agreement, the
Company shall not issue nonvoting equity securities to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)). The prohibition on the issuance of nonvoting equity securities is included in this Operating
Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. §1123(a)(6)).
2
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature
of the business to be conducted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all
other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) CCLLC, as the sole member of the Company, hereby elects Charter Communications, Inc., a Delaware corporation (“CCI”), or its
successor-in-interest that acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “Manager”). CCI shall be the Manager until a simple majority of the Votes elects otherwise.
No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except
as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business,
property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by
execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
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(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the
Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue membership interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
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(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are
reasonably expected to exceed the Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“Intercompany Indebtedness”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary
to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the
5
Chairman of the Board (if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers
of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to such person and shall exercise such
powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice President shall have the power to vote all
securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a
notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and
actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present
or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant
Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have
custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of
the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. At the date hereof,
CCLLC is the sole Member. CCLLC is not required to make any capital contribution to the Company; however, CCLLC may make capital contributions to the Company at any time in its sole discretion (for which its capital account balance shall be
appropriately increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury
6
Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not
be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, CCLLC shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
If an admission of a new Member results in the Company having more than one Member, this Agreement shall be amended in accordance with the provisions of Section 15(b) to establish the rights and responsibilities of the Members and to govern
their relationships.
(c)
Limited Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a Member nor a Manager of
the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or the relationships created
hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and their respective
affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description,
including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other
provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
For purposes of this Agreement, “Percentage Interest” shall mean with respect to any Member
as of any date the proportion (expressed as a percentage) of the respective capital account balance of such Member to the capital account balances of all Members. So long as CCLLC is the sole member of the Company, CCLLC’s Percentage Interest
shall be 100 percent.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Percentage Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances. Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s positive
capital account balance. Notwithstanding
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that the assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or
share of the Company’s profits reflected in such Member’s positive capital account balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement,
the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests from time to time.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
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SECTION 12.
Admission of Additional Members.
The admission of additional or substitute
Members to the Company shall be accomplished by the amendment of this Agreement, including Exhibit B, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become
bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a single-owner entity for
United States federal tax purposes. So long as the Company is a
single-owner
entity for federal income tax purposes, it is intended that for federal, state and local income tax purposes the Company be
disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that
(i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this
Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “Specified Agent”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities
9
Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the
Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses
(including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of
the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or
any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
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(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “Default Rule” shall mean a rule
stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
11
IN WITNESS WHEREOF, the party has caused this Agreement to be duly executed on the date first
above written.
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CHARTER COMMUNICATIONS, LLC
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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Accepting its appointment as the Company’s Manager subject to the provisions of this Agreement and agreeing to be
bound by this Agreement:
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CHARTER COMMUNICATIONS, INC., a
Delaware corporation
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By:
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/s/ Richard R. Dykhouse
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Richard R. Dykhouse
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Vice President, Associate General
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Counsel and Corporate Secretary
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EXHIBIT A
Officers
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Neil Smit
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President and Chief Executive Officer
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Michael J. Lovett
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Executive Vice President and Chief Operating Officer
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Grier C. Raclin
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Executive Vice President and Chief Administrative Officer
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Marwan Fawaz
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Executive Vice President and Chief Technology Officer
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Eloise E. Schmitz
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Executive Vice President and Chief Financial Officer
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Ted W. Schremp
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Executive Vice President and Chief Marketing Officer
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Gregory L. Doody
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Executive Vice President and General Counsel
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Steven E. Apodaca
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Senior Vice President – Division President/West Operations
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Joshua L. Jamison
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Senior Vice President – Division President/East Operations
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Greg S. Rigdon
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Senior Vice President – Corporate Development
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Jay E. Carlson
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Senior Vice President – Information Technology
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Joseph R. Stackhouse
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Senior Vice President – Customer Operations
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Kevin D. Howard
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Senior Vice President – Finance and Chief Accounting Officer
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Thomas M. Degnan
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Vice President – Finance and Corporate Treasurer
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Richard R. Dykhouse
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Vice President, Associate General Counsel and Corporate Secretary
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Paul J. Rutterer
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Assistant Secretary
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EXHIBIT B
Member
Charter Communications, LLC
14
Exhibit 3.309
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Page 1
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “VOIP TRANSFERS (AL), LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE THIRTIETH DAY OF MAY, A.D. 2014, AT 2:08 O’CLOCK
P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED
LIABILITY COMPANY, “VOIP TRANSFERS (AL), LLC”.
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/s/ Jeffrey W. Bullock
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Jeffrey W. Bullock, Secretary of State
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5542704 8100H
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Authentication: 202957482
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SR# 20165704336
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Date: 09-08-16
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You may verify this certificate online at corp.delaware.gov/authver.shtml
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
VOIP Transfers (AL), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.310
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOIP Transfers
(AL), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“Agreement”
)
is entered into as of May
30, 2014 by CC FIBERLINK, LLC, a Delaware limited liability company (the
“Member”
),
as the member of VOIP Transfers (AL), LLC, a Delaware limited liability company (the
“Company”
).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the
“Manager”
)
desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among
the Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms
and provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”
).
Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall
be VOIP Transfers (AL), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the
“Member”
; or if there are more than one, the
“Members”
) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“Vote”
) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company
(
“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION
7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented
by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule,
the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule
is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a
limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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VOIP Transfers (AL), LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
Vice President, Associate
General Counsel
and Assistant Corporate Secretary
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MEMBER
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CC FIBERLINK, LLC
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By: Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
Vice President, Associate
General Counsel
and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as Manager
CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel
and
Assistant Corporate Secretary
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12
EXHIBIT A
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OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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|
Ernest Richard Schultz
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|
Senior Vice President, Sales and Retention
|
|
Allan Singer
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|
Senior Vice President, Programming
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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|
|
|
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Members
|
|
Economic Interest
Percentage
|
|
|
CC FIBERLINK, LLC
|
|
|
100
|
%
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|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
|
|
|
|
|
14
Exhibit 3.311
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
VOIP Transfers (CA), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.312
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOIP Transfers
(CA), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30, 2014
by CCO FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of VOIP Transfers (CA), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”
).
Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall
be VOIP Transfers (CA), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers
.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated
in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
|
|
|
|
VOIP Transfers (CA), LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
Vice President,
Associate General Counsel
and Assistant Corporate Secretary
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MEMBER
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CCO FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel
and
Assistant Corporate Secretary
|
|
|
|
MANAGER
|
|
|
|
Accepting its appointment as Manager
CHARTER COMMUNICATIONS, INC.
|
|
|
|
|
By:
|
|
/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
|
|
|
|
Vice President, Associate General Counsel
and
Assistant Corporate Secretary
|
12
EXHIBIT A
|
|
|
|
|
OFFICERS
|
|
|
|
|
|
|
Thomas M. Rutledge
|
|
President and Chief Executive Officer
|
|
Christopher L. Winfrey
|
|
Executive Vice President and Chief Financial Officer
|
|
John Bickham
|
|
Executive Vice President, Chief Operating Officer
|
|
Donald F. Detampel, Jr.
|
|
Executive Vice President and President, Commercial Services
|
|
Richard R. Dykhouse
|
|
Executive Vice President, General Counsel and Corporate Secretary
|
|
Thomas Adams
|
|
Executive Vice President, Field Operations
|
|
Jonathan Hargis
|
|
Executive Vice President, Chief Marketing Officer
|
|
Kathleen Mayo
|
|
Executive Vice President, Customer Operations
|
|
James Blackley
|
|
Executive Vice President, Engineering and Information Technology
|
|
Catherine C. Bohigian
|
|
Executive Vice President, Government Affairs
|
|
David Scott Weber
|
|
Executive Vice President, Network Operations
|
|
James M. Heneghan
|
|
President, Charter Media
|
|
Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
|
|
Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
|
|
Rocky Boler
|
|
Senior Vice President, Customer Care
|
|
Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
|
|
Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
|
|
Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
Richard J. DiGeronimo
|
|
Senior Vice President, Product and Strategy
|
|
Alexander Dudley
|
|
Senior Vice President, Communications
|
|
Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
|
|
Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
Ronald J. Hartz
|
|
Senior Vice President, Financial Planning and Analysis
|
|
Keith R. Hayes
|
|
Senior Vice President, Network Operations
|
|
Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
|
Lawrence R. Martell
|
|
Senior Vice President, Software Architecture and Development
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
Allan Samson
|
|
Senior Vice President, Marketing
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
13
EXHIBIT B
Economic Interests
As
of May 30, 2014
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
CCO FIBERLINK, LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
|
|
|
|
|
14
Exhibit 3.313
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
VOIP Transfers (GA), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
|
|
|
|
|
BY:
|
|
/s/ Thomas E. Proost
|
|
|
|
Thomas E. Proost
|
|
|
|
Authorized Person
|
Exhibit 3.314
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOIP Transfers
(GA), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30, 2014
by CC FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of VOIP Transfers (GA), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall
be VOIP Transfers (GA), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the
“Member”
; or if there are more than one, the
“Members”
) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“Vote”
) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or under
common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into and represented by
Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to “Percentage
Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims
against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a) Exculpation. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective affiliates, nor
any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have engaged, in
activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members, Manager,
directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the
Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such
person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however
, that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To
the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person
bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability
. In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule,
the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule
is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited
liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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VOIP Transfers (GA), LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel
and
Assistant Corporate Secretary
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MEMBER
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CC FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel
and
Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as Manager
CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
Vice President, Associate
General Counsel
and Assistant Corporate Secretary
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12
EXHIBIT A
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OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
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CC FIBERLINK, LLC
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100
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%
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Total
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100
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%
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14
Exhibit 3.315
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
VOIP Transfers (NC), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall he perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E. Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.316
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOIP Transfers
(NC), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30,
2014 by CCO FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of VOIP Transfers (NC), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the “
Act
”). Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall
be VOIP Transfers (NC), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager
.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (“
CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-l(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of
a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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VOIP Transfers (NC), LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel
and Assistant Corporate Secretary
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MEMBER
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CCO FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
|
|
/s/ Daniel J. Bollinger
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|
|
|
Daniel J. Bollinger
|
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|
|
Vice President, Associate General Counsel
and Assistant Corporate Secretary
|
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MANAGER
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Accepting its appointment as Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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|
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Daniel J. Bollinger
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Vice President, Associate General Counsel
and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As of
May 30, 2014
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Members
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Economic Interest
Percentage
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CCO FIBERLINK, LLC
|
|
|
100
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%
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Total
|
|
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100
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%
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14
Exhibit 3.317
STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
VOIP Transfers (TN), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E.
Proost
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Thomas E. Proost
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Authorized Person
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 02:17 PM 05/30/2014
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FILED 02:11 PM 05/30/2014
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SRV 140768369 – 5542707 FILE
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Exhibit 3.318
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOIP Transfers
(TN), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30,
2014 by CC FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of VOIP Transfers (TN), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General
.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”).
Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall
be VOIP Transfers (TN), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation
(“CCI”),
or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the
“Manager”).
CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager
without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as
provided below with respect to the Manager’s board of directors (the “Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be
managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and
its activities be treated as a division of such owner. In the event that the Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local
income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to
subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of
a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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VOIP Transfers (TN), LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MEMBER
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CC FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Vice President, Associate General Counsel and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
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CC FIBERLINK, LLC
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100
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%
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Total
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100
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%
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14
Exhibit 3.319
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 02:10 PM 05/30/2014
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FILED 02:02 PM 05/30/2014
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SRV 140767677 – 5542687 FILE
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STATE OF DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE OF FORMATION
FIRST. The name of the limited liability company is
VOIP Transfers (VA), LLC
SECOND. The purpose of the company is to engage in any lawful act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
THIRD. The duration of the company shall be perpetual.
FOURTH: The address of its registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its Registered Agent at such address is Corporation Service Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation this 30th day of May, 2014.
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BY:
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/s/ Thomas E.
Proost
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Thomas E. Proost
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Authorized Person
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Exhibit 3.320
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOIP Transfers
(VA), LLC
(a Delaware Limited Liability Company)
This LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered into as of May 30,
2014 by CCO FIBERLINK, LLC, a Delaware limited liability company (the “
Member
”), as the member of VOIP Transfers (VA), LLC, a Delaware limited liability company (the “
Company
”).
W I T N E S S E T H:
WHEREAS,
Charter Communications, Inc. (the “
Manager
”) desires to form a limited liability company under the laws of the State of Delaware and desires to adopt this Limited Liability Company Agreement setting forth the agreement among the
Members with respect to the management and operation of such limited liability company.
NOW, THEREFORE, in consideration of the terms and
provisions set forth herein, the benefits to be gained by the performance thereof and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et
.
seq
., as amended from time to time (the
“Act”).
Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in
connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall
be VOIP Transfers (VA), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager (as defined in Section 4(a)(i) hereof) shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
1
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (
“CCI
”), or its successor-in-interest that
acquires directly or indirectly substantially all of the assets or business of CCI, as the Company’s manager (the “
Manager
”). CCI shall be
2
the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this
Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the
“Board”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a
“manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
3
(4) enter into or amend any agreement which provides for the management of the business or
affairs of the Company by a person other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the Manager.
4
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The initial officers are set forth on
Exhibit A
.
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold
office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the
President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
5
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of
all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and
Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at
Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have
the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds
and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and
to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation section 1.704-l(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
6
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION 7.
Economic Interests.
The Economic Interests held by each Member will be divided into
and represented by Percentage Interests, and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this Agreement to
“Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Economic Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Economic Interests.
7
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions
relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of
existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood
and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided,
however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited
liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for United States federal tax purposes.
So long as the Company is a single-owner entity for federal income tax purposes, it is intended that for federal, state and local
8
income tax purposes the Company be disregarded as an entity separate from its owner for income tax purposes and its activities be treated as a division of such owner. In the event that the
Company has two or more Members for federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for federal, state and local income tax purposes, and the Members shall not take any position or make any
election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing
shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
9
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment,
order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith,
willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other
person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
10
(e)
Severability.
In the event that any provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default
Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the
Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of
a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
|
|
|
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VOIP Transfers (VA), LLC
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|
|
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By:
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Charter Communications, Inc., its Manager
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By:
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/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
Vice President,
Associate General Counsel
and Assistant Corporate Secretary
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MEMBER
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CCO FIBERLINK, LLC
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By:
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Charter Communications, Inc., its Manager
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|
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By:
|
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/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
Vice President,
Associate General Counsel
and Assistant Corporate Secretary
|
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|
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MANAGER
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|
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Accepting its appointment as Manager
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CHARTER COMMUNICATIONS, INC.
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By:
|
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/s/ Daniel J. Bollinger
|
|
|
|
Daniel J. Bollinger
Vice President,
Associate General Counsel
and Assistant Corporate Secretary
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12
EXHIBIT A
OFFICERS
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Donald F. Detampel, Jr.
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
|
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Executive Vice President, General Counsel and Corporate Secretary
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Thomas Adams
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Executive Vice President, Field Operations
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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David Scott Weber
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Executive Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Richard J. DiGeronimo
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Senior Vice President, Product and Strategy
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Allan Samson
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Senior Vice President, Marketing
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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13
EXHIBIT B
Economic Interests
As
of May 30, 2014
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Members
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Economic Interest
Percentage
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|
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CCO FIBERLINK, LLC
|
|
|
100
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%
|
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Total
|
|
|
100
|
%
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14
Exhibit 3.321
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STATE OF DELAWARE
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SECRETARY OF STATE
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DIVISION OF CORPORATIONS
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FILED 09:00 AM 12/06/2000
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001611548 – 3326545
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CERTIFICATE OF FORMATION
OF
ADCAST NORTH CAROLINA CABLE
ADVERTISING, LLC
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1.
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Name
: The name of the limited liability company (the “Company”) is AdCast North Carolina Cable Advertising, LLC.
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2.
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Registered Office; Registered Agent
: The address of the Company’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of the
Company’s registered agent at such address is Corporation Trust Company.
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IN WITNESS WHEREOF, the undersigned has
executed this Certificate of Formation of AdCast North Carolina Cable Advertising, LLC, this 6th day of December, 2000.
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/s/ Valerie Tyler
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Printed Name: Valerie Tyler
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Authorized Person
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Exhibit 3.322
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
ADCAST NORTH
CAROLINA CABLE ADVERTISING, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Media LLC, a Delaware limited liability company and Charter Communications, LLC, a Delaware limited liability company (each a “
Member
” and collectively, the
“
Members
”), as all of the members of AdCast North Carolina Cable Advertising, LLC, a Delaware limited liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation
(formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited
liability company pursuant to a Certificate of Formation filed with the Secretary of State of the State of Delaware; and
The Members
desire to continue the Company as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all
prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management
of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be AdCast North Carolina Cable
Advertising, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the
President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the
Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of
those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and
may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue
of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of
the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures
of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set
forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in
cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic
Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by
the Members acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is intended to be treated as a partnership for U.S. federal
income tax purposes. So long as the Company has two or more partners for U.S. federal income tax purposes, it is intended that the Company be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any position
or make any election, in a tax return or otherwise, inconsistent therewith. In the event that the Company has only one owner for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company shall be
disregarded as an entity separate from its owner and its activities be treated as a division of such owner.
SECTION 14.
Exculpation
and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the
Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall
engage, or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action
against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or
8
omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified
Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look
solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member
shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of
care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any
threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made
a party by reason of the fact that such person is or was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of
the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in
connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified
for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or
public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager,
director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit
or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified
Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any
indemnification provided under this Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any Member or other person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other
9
person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities
of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or
officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s
Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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ADCAST NORTH CAROLINA CABLE ADVERTISING, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBERS
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CHARTER COMMUNICATIONS, LLC
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By: Charter Communications, Inc., its Sole Manager
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of AdCast North Carolina Cable Advertising, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
|
|
|
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
|
|
Jodi Robinson
|
|
Senior Vice President, UX Design and Development
|
|
|
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
|
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
|
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
|
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
|
|
Alan Jones
|
|
Vice President, Tax
|
|
|
|
|
Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Media LLC
|
|
|
50.00
|
%
|
|
|
|
|
Charter Communications, LLC
|
|
|
50.00
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100.00
|
%
|
B-1
Exhibit 3.323
CERTIFICATE OF FORMATION
OF
ALABANZA LLC
This Certificate of Formation of Alabanza LLC (the “Company”) is being executed by the undersigned, an unauthorized person,
for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 De.C. §18-101,
et seq.
).
|
|
1.
|
The name of the limited liability company is Alabanza LLC.
|
|
|
2.
|
The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
|
|
|
3.
|
This Certificate of Formation shall be effective as of 11:32 p.m. on May 17, 2016.
|
IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
|
|
|
|
|
By:
|
|
/s/ Martina Davis
|
|
|
|
Martina Davis
|
|
|
|
Authorized Person
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
Secretary of State
|
|
|
|
Division of Corporations
|
|
|
|
Delivered 11:11 AM 05/17/2016
|
|
|
|
FILED 11:11 AM 05/17/2016
|
|
|
|
SR 20163293395 - File Number 4402442
|
Exhibit 3.324
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
ALABANZA, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among NaviSite LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Alabanza, LLC, a Delaware limited liability company (the “
Company
”), the Company, and
Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Alabanza, LLC. The business of the Company shall be conducted under such name or
any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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ALABANZA, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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NAVISITE LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Alabanza, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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NaviSite LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.325
CERTIFICATE OF FORMATION
OF
AMERICA’S JOB
EXCHANGE LLC
This Certificate of Formation of America’s Job Exchange LLC (the “Company”) is being executed by the
undersigned, an authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
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The name of the limited liability company is America’s Job Exchange LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:32 p.m. on May 17, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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Exhibit 3.326
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICA’S JOB
EXCHANGE LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among NaviSite LLC, a Delaware limited liability company (the “
Member
”), as the sole member of America’s Job Exchange LLC, a Delaware limited liability company (the “
Company
”),
the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be America’s Job Exchange LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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AMERICA’S JOB EXCHANGE LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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NAVISITE LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of America’s Job Exchange LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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NaviSite LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.327
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 10:39 AM 05/18/2010
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FILED 10:27 AM 05/18/2010
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SRV 100521727 – 4824600 FILE
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CERTIFICATE OF FORMATION
OF
DUKENET HOLDING
COMPANY, LLC
This Certificate of Formation of DukeNet Holding Company, LLC (the “LLC”), dated May 18, 2010 is being duly
executed and filed by Teresa M. O’Neill, as an authorized person, to form a limited liability company under the Delaware Limited liability Company Act (6
Del.C
. 18-101,
et seq
.).
FIRST
. The name of the limited liability company formed hereby is DukeNet Holding Company, LLC.
SECOND
. The address of the registered office of the LLC in the state of Delaware is c/o The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
THIRD
. The name and address of the registered
agent for service of process on the LLC in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
IN WITNESS WHEREOF
, the undersigned has executed this Certificate of Formation as of the date first above written.
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/s/ Teresa M. O’Neill
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Name:
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Teresa M. O’Neill
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Authorized Person
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 03:08 PM 07/07/2010
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FILED 03:03 PM 07/07/2010
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SRV 100722152 – 4824600 FILE
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STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
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1.
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Name of Limited Liability Company:
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DUKENET HOLDING COMPANY, LLC
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2.
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The Certificate of Formation of the limited liability company is hereby amended as follows:
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ARTICLE I
The name of the
limited liability company shall be:
DukeNet Communications Holdings, LLC
IN WITNESS WHEREOF
, the undersigned have executed this Certificate on the 7
th
day
of July, A.D. 2010.
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By:
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/s/ Teresa M. O’Neill
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Authorized Person(s)
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Name:
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Teresa M. O’Neill, Asst. Secretary
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Print or Type
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Exhibit 3.328
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
DUKENET
COMMUNICATIONS HOLDINGS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of DukeNet Communications Holdings, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be DukeNet Communications Holdings, LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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DUKENET COMMUNICATIONS HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of DukeNet Communications Holdings, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Enterprises LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.329
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 10:40 AM 05/18/2010
FILED 10:25 AM 05/18/2010
SRV 100521703 – 4824595 FILE
|
|
|
CERTIFICATE OF FORMATION
OF
DUKENET OPCO, LLC
This Certificate of Formation of DukeNet OpCo, LLC (the “LLC”), dated May 18, 2010 is being duly executed and filed by
Teresa M. O’Neill, as an authorized person, to form a limited liability company under the Delaware Limited liability Company Act (6
Del.C
. 18-101,
et seq
.).
FIRST
. The name of the limited liability company formed hereby is DukeNet OpCo, LLC.
SECOND
. The address of the registered office of the LLC in the state of Delaware is c/o The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
THIRD
. The name and address of the registered
agent for service of process on the LLC in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
IN WITNESS WHEREOF
, the undersigned has executed this Certificate of Formation as of the date first above written.
|
|
|
|
|
/s/ Teresa M. O’Neill
|
|
Name:
|
|
Teresa M. O’Neill
|
|
Authorized Person
|
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 02:25 PM 10/29/2010
FILED 02:19 PM 10/29/2010
SRV 101041627 – 4824595 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF
DOMESTIC LIMITED LIABILITY COMPANIES
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Company Act, the undersigned limited liability company executed the following
Certificate of Merger:
FIRST:
The name of the surviving limited liability company is DukeNet OpCo, LLC, a Delaware limited liability company, and
the name of the limited liability company being merged into this surviving limited liability company is DukeNet Communications, LLC, a Delaware limited liability company.
SECOND:
An Agreement of Merger has been approved and executed by each of the constituent limited liability companies.
THIRD:
The name of the surviving limited liability company is DukeNet OpCo, LLC, which, upon the effectiveness of this Certificate of Merger, shall be
changed to “DukeNet Communications, LLC”.
FOURTH:
Article First to the Certificate of Formation of the surviving limited liability
company shall be amended in its entirety as follows:
FIRST: The name of the limited liability company is “DukeNet Communications,
LLC”.
FIFTH:
The merger is to become effective upon filing of this Certificate of Merger.
SIXTH:
The Agreement of Merger is on file at 400 South Tryon Street, Suite 29B, Charlotte, NC 28202, the place of business of the surviving limited
liability company.
SEVENTH:
A copy of the Agreement of Merger will be furnished by the surviving limited liability company on request, without
cost, to any member of the constituent limited liability companies.
IN WITNESS WHEREOF,
said surviving limited liability company has caused this
certificate to be signed by an authorized person, the 29
th
of October, 2010.
|
|
|
|
|
DukeNet OpCo, LLC
|
|
|
|
|
By:
|
|
/s/ W. Bradley Davis
|
|
|
|
W. Bradley Davis
|
|
|
|
President
|
376408
Exhibit 3.330
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
DUKENET
COMMUNICATIONS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among DukeNet Communications Holdings, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of DukeNet Communications, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be DukeNet Communications, LLC. The business of the Company shall be conducted under
such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of
the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the
Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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DUKENET COMMUNICATIONS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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DUKENET COMMUNICATIONS HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of DukeNet Communications, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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DukeNet Communications Holdings, LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.331
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 07/12/1999
991284265 – 3068589
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CERTIFICATE OF FORMATION
OF
ICI HOLDINGS, LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company under the provisions and subject to the
requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “Delaware Limited Liability Company Act”),
hereby certifies that:
FIRST: The name of the limited liability company is ICI Holdings, LLC (hereafter called the “limited
liability company”);
SECOND: The address of the registered office and the name and address of the registered agent of
the limited liability company, required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are the Lexis Document Services Inc., 30 Old Rudnick Lane, Suite 100, Dover, Delaware 19901.
Executed on July 8, 1999
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/s/ Stephen E. Fox
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Stephen E. Fox, Esq.
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Sole Organizer
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Cooperman Levitt Winikoff Lester & Newman, P.C.
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800 Third Avenue
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New York, New York 10022
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State of Delaware
Secretary of State
Division of Corporations
Delivered 12:17 PM 08/06/2003
FILED 12:08 PM 08/06/2003
SRV 030512880 – 3068589 FILE
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CERTIFICATE OF AMENDMENT
OF
ICI HOLDINGS, LLC
1. The name of the limited liability company is
ICI Holdings, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
(set forth amendment(s))
The registered agent shall be:
The Corporation Trust Company
Registered Office
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Note
: (Use the following paragraph
if this Certificate is to be effective at a date or time (which must be a date or time certain) later than filing)
3. This Certificate of
Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
ICI
Holdings, LLC
this
27
th
day of
June
,
2003
.
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/s/ Elliot Brecher
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Elliot Brecher, Senior Vice President of Sole Member
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Exhibit 3.332
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
ICI HOLDINGS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of ICI Holdings, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be ICI Holdings, LLC. The business of the Company shall be conducted under such name
or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with
respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or
under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members
on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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ICI HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of ICI Holdings, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.333
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State of Delaware
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Secretary of State
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Division of Corporations
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CERTIFICATE OF FORMATION
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Delivered 11:44 AM 05/09/2016
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FILED 11:44 AM 05/09/2016
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OF
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SR 20162954208 - File Number 6037243
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INSIGHT BLOCKER LLC
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This Certificate of Formation of Insight Blocker LLC (the “Company”) is being executed by the
undersigned, an authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
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The name of the limited liability company is Insight Blocker LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:59 p.m. on May 9, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 9th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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AM 57202849.2
Exhibit 3.334
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT BLOCKER LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Charter Communications, Inc., a Delaware limited liability company (the “
Member
”), as the sole member of Insight Blocker LLC, a Delaware corporation (the “
Company
”), the
Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Blocker LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members
on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
8
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or
proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or
was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their
respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective
affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct,
or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by
such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified
Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall
not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud
under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be
recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent
that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by
this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of
this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 14.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed
9
by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT BLOCKER LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Blocker LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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|
|
|
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Members
|
|
Economic Interest
Percentage
|
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Charter Communications, Inc.
|
|
|
100
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%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.335
CERTIFICATE OF FORMATION
OF
INSIGHT CAPITAL LLC
This Certificate of Formation of Insight Capital LLC (the “Company”) is being executed by the undersigned, an authorized
person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
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The name of the limited liability company is Insight Capital LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:25 p.m. on May 17, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 10:58 AM 05/17/2016
FILED 10:58 AM 05/17/2016
SR 20163293407 - File Number 3101332
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Exhibit 3.336
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT CAPITAL LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Midwest, L.P., a Delaware limited partnership (the “
Member
”), as the sole member of Insight Capital LLC, a Delaware limited liability company (the “
Company
”), the
Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Capital LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT CAPITAL LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
INSIGHT MIDWEST, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Capital LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Insight Midwest, L.P.
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.337
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8 7 0 0 8 9 0 2 9 8
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
INSIGHT COMMUNICATIONS COMPANY, L.P.
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The undersigned, for the purpose of amending and restating the Certificate of Limited Partnership of INSIGHT
COMMUNICATIONS COMPANY, L.P., a Delaware limited partnership (the “Partnership”), in accordance with Section 17-210 of the Delaware Revised Uniform Limited Partnership Act, as amended, DO HEREBY CERTIFY as follows:
I. The name of the Partnership is INSIGHT COMMUNICATIONS COMPANY, L.P.
II. The Certificate of Limited Partnership of the Partnership (the “Certificate”), originally filed with the Secretary of State of
the State of Delaware on July 17, 1985, is hereby amended and restated in full as follows:
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A.
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The name of the Partnership is INSIGHT COMMUNICATIONS COMPANY, L.P.
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B.
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The address of the registered office of the Partnership is: Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent of the Partnership at such address is The Corporation Trust
Company.
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C.
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The name and address of the General Partner is:
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ICC Associates, L.P.
126 East 56th Street
New York, New
York 10022
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IN WITNESS WHEREOF, the undersigned has duly executed this Certificate as of the
31st
day
of
December
, 198
6
.
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ICC ASSOCIATES, L.P.
By INSIGHT
COMMUNICATIONS, INC.
its General Partner
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By:
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/s/ Sidney R. Knafel
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Sidney R. Knafel, Chairman
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/21/1996
960340602 – 2066806
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CERTIFICATE TO RESTORE TO GOOD STANDING
OF A DELAWARE LIMITED PARTNERSHIP
PURSUANT TO TITLE 6, SEC. 17-1109
1. The name
of the Limited Partnership is Insight Communications Company, L.P.
2. Date of original filing with Delaware Secretary of State
July 17, 1985.
I, Kim D. Kelly, Executive Vice President of
Insight Communications, Inc., the general partner of ICC Associates, L.P., General Partner of the above named limited partnership do hereby certify that this limited partnership is paying all annual taxes, penalties and interest due to the State of
Delaware.
I do hereby request this limited partnership be restored to Good Standing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this 20th day of November, 1996.
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ICC Associates, L.P.
General
Partner
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By:
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Insight Communications, Inc.
its general
partner
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By:
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/s/ Kim D. Kelly
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Kim D. Kelly
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Executive Vice President
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NOV 20 ’96 10:33
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212 7555336 PAGE.002
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** TOTAL PAGE.04 **
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STATE OF DELAWARE
AMENDMENT TO THE AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
INSIGHT COMMUNICATIONS COMPANY,
L.P.
The undersigned, desiring to amend the Amended and Restated Certificate of Limited Partnership of Insight Communications Company,
L.P. pursuant to the provisions of Section 17- 202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
FIRST: The name of the Limited Partnership is Insight Communications Company, L.P.
SECOND Section II (c) of the Amended and Restated Certificate of Limited Partnership shall be amended as follows:
C. The name and address of the General Partner is
Insight Communications Company, Inc.
810 7th Avenue, 41st Floor
New
York, NY, 10019
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Amended and Restated Certificate of Limited
Partnership on this 29th day of December, 2000.
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 05:00 PM 12/29/2000
010002589 – 2066806
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By:
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INSIGHT COMMUNICATIONS COMPANY, INC., general partner of Insight Communications Company, L.P.
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By:
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/s/ Elizabeth M. Grier
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Name:
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Elizabeth M. Grier
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Title:
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VP Administration
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- 2 -
Exhibit 3.338
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INSIGHT
COMMUNICATIONS COMPANY, L.P.
(A Delaware Limited Partnership)
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INSIGHT COMMUNICATIONS COMPANY, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”) is entered into as of May 18, 2016 by and between Insight Communications Company, LLC, a Delaware limited liability company as the general partner (the “
General Partner
”), and ICI Holdings, LLC, a
Delaware limited partnership as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of Insight Communications Company, L.P., a Delaware limited partnership (the
“
Partnership
”).
W I T N E S S E T H :
WHEREAS, the Partnership was formed as a Delaware limited partnership pursuant to a Certificate of Limited Partnership (the
“
Certificate of Limited Partnership
”) filed in the office of the Secretary of State of the State of Delaware;
WHEREAS,
the Partners desire to continue the Partnership as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et seq
.
, as amended from time to time (the “
Act
”), and to amend and
restate any and all prior limited partnership agreements of the Partnership as follows:
SECTION 1.
General
.
(a) Effective as of the date and time of filing of the Certificate of Limited Partnership in the office of the Secretary of State of the State
of Delaware, the Partnership was formed as a limited partnership under the Act. Except as expressly provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by
the Act.
(b) The name of the Partnership shall be “Insight Communications Company, L.P.” The business of the Partnership shall
be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The
Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered agent shall be as stated in the Certificate of Limited Partnership or as otherwise determined by the General
Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite
400, St. Louis, MO 63131. At any time, the General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the date of the filing of the Certificate of Limited Partnership in the office of the Secretary
of State of the State of Delaware and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s) shall execute, deliver and file any certificates (and any amendments
and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be conducted by
the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner interest
shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the authority of,
and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The
General Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such authority with respect to the management of the business and affairs of the Partnership as set forth herein or as
otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were elected.
The General Partner(s) shall have the authority to convert the Partnership into a limited liability company and to take all actions necessary,
convenient, desirable or incidental to such conversion.
Except as otherwise required by applicable law, each General Partner shall be
authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
-2-
No annual or regular meetings of the General Partner(s) or the Partners are required. The General
Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of
Directors
.
(i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business of the
Partnership to a Board of Directors (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be done by a
general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the members of the Board may
not be assigned or delegated to any person or entity.
(ii) Except as otherwise provided herein, members of the Board shall possess and
may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
(iii) The number of directors shall initially be one (4), which number may be changed from time to time by the General Partner(s). The
initial directors shall be Richard R. Dykhouse, Charles Fisher, Thomas E. Proost and Daniel J. Bollinger.
(iv) Each director shall be
appointed by the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
(v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for attendance at
any meeting of the Board;
provided
,
however
, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner(s) shall be required
to:
(i) alter the primary purposes of the Partnership as set forth in Section 2;
(ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
(iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
-3-
(iv) enter into or amend any agreement which provides for the management of the business or
affairs of the Partnership by a person other than the General Partner(s);
(v) change or reorganize the Partnership into any other legal
form;
(vi) amend this Agreement;
(vii) approve a merger or consolidation with another entity;
(viii) sell all or substantially all of the assets of the Partnership;
(ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
(x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
(xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
(xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
(xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
(xiv) materially change any of the tax reporting positions or elections of the Partnership;
(xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the General Partner(s).
-4-
(d)
Board of Director Meetings
.
(i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from time to
time be determined by the Board, but not less often than annually.
(ii)
Special Meetings.
Special meetings of the Board may
be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of Partners
holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
(iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting
can hear each other. Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such meeting.
(iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the
Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to any
director not present at such meeting.
(v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or this
Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties to the Partnership
and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within the scope of authority
conferred by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers
.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including a
Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers
of the Partnership are hereby removed and the officers of the Partnership shall be as set forth on
Schedule A
hereto (as such Exhibit may be amended by the written consent of the General Partner(s)).
-5-
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected by and
shall hold office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of the Board, the
General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any reason or for no
reason.
(d)
Duties and Authority of Officers
.
(i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions of the
Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the General Partner(s) to the
contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior available
officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed upon him.
(ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or her and shall exercise
such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary, any Senior Vice President
shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
(iii)
The Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or such other place as the Board
may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the General Partner(s)
or the Board.
(iv)
The Treasurer.
The Treasurer shall have custody of the Partnership funds and securities and shall
keep or cause to be kept full and accurate accounts of
-6-
receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of
the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner(s) or the Board.
SECTION 6.
Partners
.
(a) The Partners of the Partnership shall be set forth on
Schedule B
hereto. Other persons or entities may be admitted as Partners from
time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and
obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c)
Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in
other activities or business ventures of any kind or character whatsoever. Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct, or to
possess a direct or indirect ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other assets
as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule B
). Liquidating
distributions shall be divided among the Partners in accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-1(b)(2)(iv)), and such liquidating distributions
shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
SECTION 8.
Allocations
.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in
Schedule B
).
(b) All allocations of Partnership income, gain, loss, deductions, and other items
shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic
effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of any limited
dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which this clause (i) is
satisfied, such Partner’s capital account shall be reduced for the
-7-
items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted as provided in the Regulations related thereto), and (ii)
a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the
preceding sentence (the “
Regulatory Allocations
”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset
either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the
General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account
balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up
.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner(s) or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In winding up
the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to (i)
causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims against
the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that a
reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or
otherwise) all or any part of his, her or its
-8-
partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided
,
however
, that this Section 10 shall
not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General
Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished by
the amendment of this Agreement.
SECTION 12.
Tax Matters.
As of the date of this Agreement, the Partnership is a disregarded
entity for U.S. federal income tax purposes. So long as the Partnership is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Partnership be disregarded as an entity separate from
its owner and its activities be treated as a division of such owner. In the event that the Partnership has two or more partners for U.S. federal income tax purposes, it is intended that (i) the Partnership shall be treated as a partnership for U.S.
federal income tax purposes, and the Partners shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant
to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts and
liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses,
-9-
damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such
Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not
constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any
claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct
or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the
Partnership and not from the Partners.
SECTION 14.
Miscellaneous
.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action
on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of
such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the
General Partner(s) may approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts
of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-10-
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first written above.
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INSIGHT COMMUNICATIONS COMPANY, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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ICI HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[
Signature Page to LP Agreement of Insight Communications Company, L.P.
]
SCHEDULE A
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Keith R. Hayes
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Senior Vice President, Network Operations
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Name
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Title
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Partnership immediately prior to the date hereof with
the titles of senior vice president or below shall remain as officers of the Partnership in such capacities.
SCHEDULE B
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Partner Name
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Number and Type of Units
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Insight Communications Company, LLC
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99 general partner
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ICI Holdings, LLC
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1 limited partner
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Exhibit 3.339
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 05/01/1998
981168145 – 2891563
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CERTIFICATE OF FORMATION
OF
INSIGHT COMMUNICATIONS OF
INDIANA, LLC
The name of the limited liability company is Insight Communications of Indiana,
LLC (the “LLC”).
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2.
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REGISTERED OFFICE AND AGENT
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The address of the registered office of the LLC in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, The registered agent in charge thereof is The Corporation Trust Company.
The name and address of the Authorized Person is Insight
Communications Company, L.P., 126 E. 56th Street, New York, New York 10022.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Formation, this 30
th
day of April, 1998.
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INSIGHT COMMUNICATIONS COMPANY, L.P.
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By:
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ICC Associates, L.P., its general partner
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By:
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Insight Communications, Inc., its general partner
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By:
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/s/ MICHAEL S. WILLNER
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Name:
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MICHAEL S. WILLNER
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Title:
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PRESIDENT
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TCI OF INDIANA HOLDINGS, LLC
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By:
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TCI of Indiana, Inc., as managing member
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By:
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/s/ Stephen Brett
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Name:
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Stephen Brett
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Title:
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Vice President
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DC01/182354-3
DEC 19 2000 16:22 FR
INSIGHT COMMUNICATIONS 917 286 2301 TO 913026555049 P.02/02
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION OF
INSIGHT COMMUNICATIONS OF INDIANA, LLC
1. The name of the limited liability company is Insight Communications of Indiana, LLC.
2. Section 1 one of the Certificate of Formation of the limited liability company is hereby amended as follows:
1.
Name
The name of the
limited liability company is Insight Communications Midwest, LLC.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment of Insight Communications of Indiana, LLC this 19th day of December, 2000.
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INSIGHT COMMUNICATIONS OF INDIANA, LLC
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By: Insight Midwest, L.P., its sole member
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By: Insight Communications Company, L.P., its general partner
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By: Insight Communications Company, Inc., its sole general partner
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/s/ Elizabeth M. Grier
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Name:
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Elizabeth M. Grier
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Title:
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Vice President of Administration
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 05:30 PM 12/19/2000
001638787 – 2891563
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** TOTAL PAGE.02 **
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:00 AM 01/08/2001
010010668 – 2891563
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Certificate of Amendment to Certificate of Formation
of
Insight Communications
Midwest, L L C
It is hereby certified that:
1. The name of the limited liability company (hereinafter called the “limited liability company”) is Insight Communications Midwest,
LLC.
2. The certificate of formation of the limited liability company is hereby amended by striking out Article 3 thereof and by
substituting in lieu of said Article the following new Article:
3.
AUTHORIZED PERSON
The name and address of the Authorized Person is Insight Midwest Holdings, LLC, 810 7th Avenue, 41st Floor, New York, NY 10019.
The undersigned have executed this Certificate of Amendment to Certificate of Formation, this
5
th
day of January, 2001.
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INSIGHT MIDWEST HOLDINGS, LLC
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BY:
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Insight Midwest, L.P.,
its sole
member
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BY:
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Insight Communications Company, L.P., its general partner
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BY:
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Insight Communications Company, Inc., its general partner
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/s/ Elizabeth M. Grier
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Name:
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Elizabeth M. Grier
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Title:
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VP Administration
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DCLIB01:1290156-1
Exhibit 3.340
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT
COMMUNICATIONS MIDWEST, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Midwest, L.P., a Delaware limited partnership (the “
Member
”), as the sole member of Insight Communications Midwest, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Communications Midwest, LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT COMMUNICATIONS MIDWEST, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INSIGHT MIDWEST, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Communications Midwest, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
|
|
|
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
|
|
|
|
Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
|
|
|
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
|
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
|
|
Jodi Robinson
|
|
Senior Vice President, UX Design and Development
|
|
|
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
|
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
|
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
|
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
|
|
Alan Jones
|
|
Vice President, Tax
|
|
|
|
|
Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Insight Midwest, L.P.
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.341
|
|
|
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|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:15 AM 07/23/1998
981286158 – 2924254
|
CERTIFICATE OF FORMATION
OF
INSIGHT COMMUNICATIONS OF
CENTRAL OHIO, LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the
provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “Delaware Limited
Liability Company Act”), hereby certifies that:
FIRST: The name of the limited liability company is Insight Communications of
Central Ohio, LLC (hereinafter called the “limited liability company”);
SECOND: The address of the registered office and the
name and address of the registered agent of the limited liability company for service of process, required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act arc The Corporation Trust Company, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801.
Executed on July 23, 1998
|
|
|
/s/ Barry A. Cassell
|
|
Barry A. Cassell, Esq.
|
|
Sole Organizer
|
|
Cooperman Levitt Winikoff Lester & Newman, P.C.
|
|
800 Third Avenue
|
|
New York, New York 10022
|
Exhibit 3.342
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT
COMMUNICATIONS OF CENTRAL OHIO, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company, and Insight Blocker LLC, a Delaware limited liability company (each a “
Member
” and collectively, the
“
Members
”), as all of the members of Insight Communications of Central Ohio, LLC, a Delaware limited liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly
known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability
company pursuant to a Certificate of Formation filed with the Secretary of State of the State of Delaware; and
The Members desire to
continue the Company as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior
limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Communications of
Cetral Ohio, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic
Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is intended to be treated as a partnership for U.S. federal
income tax purposes. So long as the Company has two or more partners for U.S. federal income tax purposes, it is intended that the Company be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any
position or make any election, in a tax return or otherwise, inconsistent therewith. In the event that the Company has only one owner for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company
shall be disregarded as an entity separate from its owner and its activities be treated as a division of such owner.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the
officers of the Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such
capacity, shall engage, or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall
take any action against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or
8
omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified
Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look
solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member
shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of
care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any
threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made
a party by reason of the fact that such person is or was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of
the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in
connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified
for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or
public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager,
director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit
or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified
Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any
indemnification provided under this Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any Member or other person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other
9
person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities
of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or
officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBERS
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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INSIGHT BLOCKER LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Communications of Central Ohio, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Economic Interest
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Members
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Percentage
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Time Warner Cable Enterprises LLC
|
|
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99.00
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%
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Time Warner Cable Internet Holdings LLC
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1.00
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%
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Total
|
|
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100.00
|
%
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B-1
Exhibit 3.343
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/30/1997
971368101 – 2814763
|
CERTIFICATE OF LIMITED PARTNERSHIP
OF
INTERMEDIA PARTNERS GROUP VI,
L.P.
This Certificate of Limited Partnership of INTERMEDIA PARTNERS GROUP VI, L.P. (the “Limited Partnership”) is being executed by the
undersigned for the purpose of forming a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act.
1. The
name of the limited partnership is
INTERMEDIA PARTNERS GROUP VI, L.P.
2. The address of the registered office of the limited partnership in Delaware is 1013 Centre Road, Wilmington, Delaware 19805. The limited
partnership’s registered agent at that address is Corporation Service Company.
3. The names and addresses of the general partners
are:
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NAME
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ADDRESS
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INTERMEDIA CAPITAL PARTNERS VI, L.P.
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235 Montgomery Street, Suite 420
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San Francisco, CA 94104
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[4. Any other information which the general partners choose to include.]
IN WITNESS WHEREOF, the undersigned, constituting all of the general partners of the Partnership, have caused this Certificate of Limited
Partnership
to be duly executed as of the 30
th
day of October 1997.
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INTERMEDIA PARTNERS GROUP VI, L.P.
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By:
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INTERMEDIA CAPITAL PARTNERS VI, L.P., its general partner
|
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By:
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INTERMEDIA CAPITAL MANAGEMENT VI, LLC, its general partner
|
|
By:
|
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INTERMEDIA MANAGEMENT, INC., its manager
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By:
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/s/ Lisa Perreault
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Lisa Perreault, Secretary
|
DE LP D-:CERTIFICATE OF LIMITED PARTNERSHIP 05/96
STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INTERMEDIA PARTNERS GROUP VI, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of InterMedia Partners Group VI, L.P. pursuant to the provisions of
Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
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FIRST:
|
|
The name of the Limited Partnership is InterMedia Partners Group VI, L.P.
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SECOND:
|
|
Article 1 of the Certificate of Limited Partnership shall be amended as follows:
|
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The name of the limited partnership is Insight Communications of Kentucky, L.P.
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THIRD:
|
|
Article 3 of the Certificate of Limited Partnership shall be amended as follows:
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|
The name and address of the general partner is Insight Midwest, L.P., 126 E. 56th Street, New York, New York, 10022.
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IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this
1
st
day of October, 1999.
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/01/1999
991415113 – 2814763
|
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DCLIB01:1215935-2
DE-Certificate of Amendment
(IPG 6)
High Yield
|
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By:
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INSIGHT MIDWEST, L.P., general partner of Insight Communications of Kentucky, L.P.
|
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By:
|
|
Insight Communications Company, L.P., its general partner
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By:
|
|
Insight Communications Company, Inc., its general partner
|
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|
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By:
|
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/s/ Kim D. Kelly
|
|
|
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|
|
Name:
|
|
Kim D. Kelly
|
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|
|
Title:
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Executive Vice President
|
- 2 -
DCLIB01:1215935-2
DE-Certificate of Amendment (IPG 6)
High Yield
|
|
|
|
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|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/05/1999
991472959 – 2814763
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|
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STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INSIGHT COMMUNICATIONS OF KENTUCKY, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of Insight Communications of Kentucky, L.P. pursuant to the
provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
|
|
|
|
|
FIRST:
|
|
The name of the Limited Partnership is Insight Communications of Kentucky, L.P.
|
|
|
|
|
SECOND:
|
|
Article 2 of the Certificate of Limited Partnership shall be amended as follows:
|
|
|
|
|
|
|
The address of the registered agent of the limited partnership in Delaware is 1209 Orange Street, Wilmington, Delaware 19801. The limited partnership’s registered agent at that address is The Corporation Trust
Company.
|
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this
5
th
day of November, 1999.
|
|
|
|
|
|
|
By:
|
|
INSIGHT MIDWEST, L.P., general partner of Insight Communications of Kentucky, L.P.
|
|
|
|
|
By:
|
|
Insight Communications Company, L.P., its general partner
|
|
|
|
|
By:
|
|
Insight Communications Company, Inc., its general partner
|
|
|
|
|
By:
|
|
/s/ Kim D. Kelly
|
|
|
|
Name:
|
|
Kim D. Kelly
|
|
|
|
Title:
|
|
Executive Vice President
|
DCLIB01:1222529-1
|
|
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|
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|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:00 AM 01/08/2001
010010679 – 2814763
|
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED
PARTNERSHIP
OF INSIGHT COMMUNICATIONS OF KENTUCKY, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of Insight Communications of Kentucky, L.P. pursuant to the provisions of
Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
FIRST: The
name of the limited partnership (hereinafter called the “partnership”) is Insight Communications of Kentucky, L.P.
SECOND:
Article 3 of the Certificate of Limited Partnership shall be amended as follows:
The name and address of the general partner is Insight
Midwest Holdings, LLC, 810 7th Avenue, 41st Floor, New York, New York 10019.
In witness whereof, the undersigned executed this
Amendment to the Certificate of Limited partnership on this 5
th
day of January, 2001.
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
DCLIB01:1290416-1
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INSIGHT MIDWEST HOLDINGS, LLC, general partner of Insight Communications of Kentucky, L.P.
|
|
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|
|
BY:
|
|
Insight Midwest, L.P., its sole member
|
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|
|
BY:
|
|
Insight Communications Company, L.P., its general partner
|
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|
|
|
BY:
|
|
Insight Communications Company, Inc., its general partner
|
|
|
|
|
|
|
/s/ Elizabeth M. Grier
|
|
|
|
Name:
|
|
Elizabeth M. Grier
|
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|
|
Title:
|
|
VP Administration
|
DCLIB01 1290416-1
Exhibit 3.344
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INSIGHT
COMMUNICATIONS OF KENTUCKY, L.P.
(A Delaware Limited Partnership)
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INSIGHT MIDWEST, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”) is entered into as of May 18, 2016 by and between Insight Midwest Holdings, LLC, a Delaware limited liability company as the general partner (the “
General Partner
”), and Insight Kentucky Capital, LLC, a
Delaware limited liability company as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of Insight Communications of Kentucky, L.P., a Delaware limited partnership (the
“
Partnership
”).
W I T N E S S E T H :
WHEREAS, the Partnership was formed as a Delaware limited partnership pursuant to a Certificate of Limited Partnership (the
“
Certificate of Limited Partnership
”) filed in the office of the Secretary of State of the State of Delaware;
WHEREAS,
the Partners desire to continue the Partnership as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et seq
.
, as amended from time to time (the “
Act
”), and to amend and
restate any and all prior limited partnership agreements of the Partnership as follows:
SECTION 1.
General
.
(a) Effective as of the date and time of filing of the Certificate of Limited Partnership in the office of the Secretary of State of the State
of Delaware, the Partnership was formed as a limited partnership under the Act. Except as expressly provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by
the Act.
(b) The name of the Partnership shall be “Insight Communications of Kentucky, L.P.” The business of the Partnership
shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The
Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered agent shall be as stated in the Certificate of Limited Partnership or as otherwise determined by the General
Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite
400, St. Louis, MO 63131. At any time, the General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the date of the filing of the Certificate of Limited Partnership in the office of the Secretary
of State of the State of Delaware and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s) shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be
conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner
interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the
authority of, and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The General Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such
authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were
elected.
The General Partner(s) shall have the authority to convert the Partnership into a limited liability company and to take all
actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by applicable law, each General
Partner shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
-2-
No annual or regular meetings of the General Partner(s) or the Partners are required. The
General Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors
.
(i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business
of the Partnership to a Board of Directors (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be
done by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the members of the
Board may not be assigned or delegated to any person or entity.
(ii) Except as otherwise provided herein, members of the Board shall
possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
(iii) The number of directors shall initially be one (4), which number may be changed from time to time by the General Partner(s). The initial
directors shall be Richard R. Dykhouse, Charles Fisher, Thomas E. Proost and Daniel J. Bollinger.
(iv) Each director shall be appointed
by the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
(v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for attendance at
any meeting of the Board;
provided
,
however
, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner(s) shall be required
to:
(i) alter the primary purposes of the Partnership as set forth in Section 2;
(ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
(iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
-3-
(iv) enter into or amend any agreement which provides for the management of the business or
affairs of the Partnership by a person other than the General Partner(s);
(v) change or reorganize the Partnership into any other legal
form;
(vi) amend this Agreement;
(vii) approve a merger or consolidation with another entity;
(viii) sell all or substantially all of the assets of the Partnership;
(ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
(x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
(xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
(xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
(xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
(xiv) materially change any of the tax reporting positions or elections of the Partnership;
(xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the General Partner(s).
-4-
(d)
Board of Director Meetings
.
(i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from
time to time be determined by the Board, but not less often than annually.
(ii)
Special Meetings.
Special meetings of
the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of
Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
(iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of
conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such
meeting.
(iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by
statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be
given to any director not present at such meeting.
(v)
Action Without Meeting.
Unless otherwise restricted by the
Certificate or this Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
(e)
Board’s Duty of Care
. The Board’s duty of care in the discharge of its
duties to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably
believes to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be
within the scope of authority conferred by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers
.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including
a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior
officers of the Partnership are hereby removed and the officers of the Partnership shall be as set forth on
Schedule A
hereto (as such Exhibit may be amended by the written consent of the General Partner(s)).
-5-
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected
by and shall hold office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of
the Board, the General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers
.
(i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions
of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the General Partner(s)
to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior
available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed
upon him.
(ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or
her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary, any
Senior Vice President shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
(iii)
The
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership or
such other place as the Board may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice
given), the names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time
by the General Partner(s) or the Board.
(iv)
The Treasurer.
The Treasurer shall have custody of the Partnership funds
and securities and shall keep or cause to be kept full and accurate accounts of
-6-
receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of
the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner(s) or the Board.
SECTION 6.
Partners
.
(a) The Partners of the Partnership shall be set forth on
Schedule B
hereto. Other persons or entities may be admitted as Partners from
time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and
obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c)
Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in
other activities or business ventures of any kind or character whatsoever. Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct,
or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other
assets as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule B
).
Liquidating distributions shall be divided among the Partners in accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-1(b)(2)(iv)), and such liquidating
distributions shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
SECTION 8.
Allocations
.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in
Schedule B
).
(b) All allocations of Partnership income, gain, loss, deductions, and other items
shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic
effect under Treasury Regulations
Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s
capital account (in excess of any limited dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the
extent to which this clause (i) is satisfied, such Partner’s capital account shall be reduced for the
-7-
items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted as provided in the Regulations related thereto), and (ii)
a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the
preceding sentence (the “
Regulatory Allocations
”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset
either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the
General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account
balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up
.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner(s) or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In winding up
the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to (i)
causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims
against the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed that
a reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage,
exchange or otherwise) all or any part of his, her or its
-8-
partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided
,
however
, that this Section 10 shall
not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General
Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished
by the amendment of this Agreement.
SECTION 12.
Tax Matters.
As of the date of this Agreement, the Partnership is a disregarded
entity for U.S. federal income tax purposes. So long as the Partnership is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Partnership be disregarded as an entity separate from
its owner and its activities be treated as a division of such owner. In the event that the Partnership has two or more partners for U.S. federal income tax purposes, it is intended that (i) the Partnership shall be treated as a partnership for
U.S. federal income tax purposes, and the Partners shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts
and liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses,
-9-
damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such
Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not
constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any
claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct
or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the
Partnership and not from the Partners.
SECTION 14.
Miscellaneous
.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action
on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of
such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the
General Partner(s) may approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts
of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-10-
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first written above.
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INSIGHT MIDWEST HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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INSIGHT KENTUCKY CAPITAL, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[
Signature Page to LP Agreement of Insight Communications of Kentucky, L.P.
]
SCHEDULE A
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Name
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Title
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Partnership immediately prior to the date hereof with
the titles of senior vice president or below shall remain as officers of the Partnership in such capacities.
SCHEDULE B
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Partner Name
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Number and Type of Units
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Insight Midwest Holdings, LLC
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99.999 general partner
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Insight Kentucky Capital, LLC
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0.001 limited partner
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Exhibit 3.345
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT INTERACTIVE, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE EIGHTH DAY OF FEBRUARY, A.D. 2000, AT 9 O’CLOCK
A.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “SOURCESUITE ACQUISITION LLC” TO “SOURCESUITE LLC”, FILED
THE SIXTH DAY OF MARCH, A.D. 2000, AT 9:01 O’CLOCK A.M.
CERTIFICATE OF RESIGNATION OF REGISTERED AGENT WITHOUT APPOINTMENT,
FILED THE THIRTEENTH DAY OF MAY, A.D. 2003, AT 12:43 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE TWENTY-FIRST DAY OF MAY,
A.D. 2003, AT 4:20 O’CLOCK P.M.
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3172612 8100H
SR#
20165695258
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
Authentication: 202953746
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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Delaware
The First State
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Page
2
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CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “SOURCESUITE LLC” TO
“INSIGHT INTERACTIVE, LLC”, FILED THE NINTH DAY OF JULY, A.D. 2004, AT 3:11 O’CLOCK P.M.
AND I DO HEREBY FURTHER
CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “INSIGHT INTERACTIVE, LLC”.
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3172612 8100H
SR#
20165695258
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
Authentication: 202953746
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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CERTIFICATE OF FORMATION
OF
SOURCESUITE
ACQUISITION LLC
This certificate of formation of SourceSuite Acquisition LLC (the “Company”), dated as of February 2, 2000,
is being duly executed and filed by an authorized person to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. §18-101
et
seq.
).
FIRST.
The name of the Company is
SourceSuite Acquisition LLC.
SECOND.
The address, including the street, number, city and county, of the registered office of the Company in the State of Delaware is
30 Old Rudnick Lane, Suite 100, Dover, Delaware 19901, County of Kent; and the name of the registered agent of the Company in the State of Delaware at such address is LEXIS Document Services Inc.
IN WITNESS WHEREOF,
the undersigned has executed this Certificate of Formation this 8th day of February, 2000.
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By:
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/s/ Dan L.
Rosenbaum
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Authorized Person
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Name:
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Dan L. Rosenbaum
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F:\CLIENTS\4559-Source Media\006 -
Liberate\SSACertFormation.wpd
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 02/08/2000
001062379 – 3172612
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FAX
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State of Delaware - Division of Corporations
DOCUMENT FILING SHEET
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Priority 1
(Two Hr.
Service)
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Priority 2
(Same Day)
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Priority 3
(24 Hour)
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Priority 4
(Must Approvals)
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Priority 5
(Reg. Approvals)
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Priority 6
(Reg. Work)
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DATE SUBMITTED
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03-06-00
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REQUESTOR NAME
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LEXIS DOCUMENT SERVICES INC.
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FILE DATE
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03-06-00
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ADDRESS
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30 OLD RUDNICK LANE
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FILE TIME
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0901
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DOVER, DE 19901
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ATTN.
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Reneé
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PHONE
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302-736-4300
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NAME of COMPANY/ENTITY
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S
OURCESUITE
A
CQUISITION
LLC
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changing name to: S
OURCE
S
UITE
LLC
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001111060
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3172612
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9215379
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SRV NUMBER
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION
NO.
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TYPE of DOCUMENT
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Amendment
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DOCUMENT CODE
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0240
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CHANGE of NAME
CHANGE of AGENT / OFFICE
CHANGE of
STOCK
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CORPORATIONS
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FRANCHISE
TAX YEAR
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$
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FILING FEE TAX
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$
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RECEIVING & INDEXING
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$
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CERTIFIED COPIES NO.
1
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$
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SPECIAL SERVICES
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$
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KENT COUNTY RECORDER
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$
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NEW CASTLE COUNTY RECORDER
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$
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SUSSEX COUNTY RECORDER
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$
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TOTAL:
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$
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METHOD of RETURN
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X
MESSENGER/PICKUP
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FED. EXPRESS Acct #
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REGULAR MAIL
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FAX No.
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OTHER
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COMMENTS / FILING INSTRUCTIONS
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2 of 2
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CREDIT CARD CHARGES
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You have my authorization to charge my credit card for this service:
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-
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-
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Exp.
Date
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Signature
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Printed Name
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X
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AGENT USE ONLY
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INSTRUCTIONS
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1.
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Fully shade in the required Priority square using a dark pencil or marker, staying within the square.
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2.
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Each request must be submitted as a separate item,
with its own Filing sheet as the FIRST PAGE.
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:01 AM 03/06/2000
001111060 – 3172612
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
SOURCESUITE ACQUISITION LLC
The undersigned President and Chief Executive Officer of SourceSuite Acquisition LLC (the “Company”), dated as of March 3,
2000, hereby certifies as follows:
FIRST.
The name of the Company is
SourceSuite Acquisition LLC
.
SECOND.
Paragraph First of the Certificate of Formation of the Company is amended to read as follows:
The name of the Company is
SourceSuite LLC
.
IN WITNESS WHEREOF
, the undersigned has executed this Certificate of Amendment as of the date first written above.
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/s/ Stephen W. Palley
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Stephen W. Palley,
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President and Chief Executive Officer
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F:\CLIENTS\4559-Source Media\006-Liberate\SSACertAmendment.wpd
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State of Delaware
Secretary of State
Division of Corporations
Delivered 12:56 PM 05/13/2003
FILED 12:43 PM 05/13/2003
SRV 030308921 – 3172612 FILE
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CERTIFICATE OF RESIGNATION
OF REGISTERED AGENT
OF
SOURCESUITE LLC
This is to certify that LEXIS Document Services Inc. of 30 Old Rudnick Lane, Suite 100, Dover, Delaware, pursuant to Section 18-104 (d)
of the Limited Liability Company Act of The State of Delaware:
(1) Resigned the office of the registered agent of
SOURCESUITE LLC
An LLC of the State of
Delaware, on May 13, 2003, without appointing any successor as registered agent in its stead.
(2) Sent on March 12, 2003, by certified
mail, due notice of its resignation to the principal office of the LLC at the following address:
Accounts Payable
Source Media Inc
# 200, 5601
Executive Drive
Irving, TX 75038-2508
(3) The said notice of resignation has been returned by the post office.
(4) The said resignation shall not become effective for 30 days from the date of filing.
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/s/ Rose L. Redman
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Rose L. Redman - Assistant Secretary
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File# 3172612
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State of Delaware
Secretary of State
Division of Corporations
Delivered 04:32 PM 05/21/2003
FILED 04:20 PM 05/21/2003
SRV 030332304 – 3172612 FILE
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CERTIFICATE OF AMENDMENT
OF
SOURCESUITE LLC
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1.
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The name of the limited liability company is SourceSuite LLC.
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2.
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The Certificate of Formation of the limited liability company is hereby amended as follows:
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To change the
designation of registered agent in Delaware upon whom all process against the corporation may be served from Lexis Document Services Inc., 30 Old Rudnick Lane, Ste. #100, Dover, DE 19901 to The Corporation Trust Company, 1209 Orange Street,
Wilmington, New Castle County, DE, 19801.
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3.
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This Certificate of Amendment shall be effective upon filing.
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IN WITNESS WHEREOF, the
undersigned has executed this Certificate of SourceSuite LLC this 21
th
day of May, 2003.
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/s/ Elliot Brecher
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Elliot Brecher, Senior Vice President
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State of Delaware - Division of Corporations
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Fax
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Document Filing Sheet
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PART II OF II
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Priority 1
(One Hr)
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Priority 2
(Two Hr)
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Priority 3
(Same Day)
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Priority 4
(24 Hr)
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Priority 5
(Must Approval)
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Priority 6
(Reg. Approval)
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Priority 7
(Reg. Work)
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DATE SUBMITTED
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8-9-04
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REQUESTOR NAME
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The Corporation Trust Company
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FILE DATE
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8-9-04
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ADDRESS
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WILM/ Cynthia Pierce/Wilmin /
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FILE TIME
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1511
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ATTN.
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Cynthia Pierce
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PHONE
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866-809-1134
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NAME of COMPANY/ENTITY
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SOURCE SUITE LLC C/N/T INSIGHT INTERACTIVE, LLC
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040506286
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3172612
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9000010
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SRV NUMBER
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION NO.
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TYPE OF DOCUMENT
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AMENDMENT
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DOCUMENT CODE
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18-202
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CHANGE of NAME
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X
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CHANGE of AGENT/OFFICE
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CHANGE OF STOCK
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CORPORATIONS
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FRANCHISE
TAX YEAR
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$
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FILING FEE TAX
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$
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RECEIVING & INDEXING
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$
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CERTIFIED COPIES
NO.
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$
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SPECIAL SERVICES
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$
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KENT COUNTY RECORDER
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$
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NEW CASTLE COUNTY RECORDER
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$
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SUSSEX COUNTY RECORDER
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$
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TOTAL
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$
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METHOD of RETURN
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MESSENGER/PICKUP
FED. EXPRESS Acct.#
REGULAR MAIL
FAX No.
OTHER
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COMMMENTS/FILING INSTRUCTIONS
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CREDIT CARD CHARGES
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You have my authorization to charge my credit card for this service:
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-
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-
Exp. Date
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Signature
Printed Name
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XX
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AGENT USE ONLY
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INSTRUCTIONS
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1. Full shade in the required Priority square using a dark pencil or marker, staying within the square.
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2. Each request must be submitted as a separate item, with its own Filing sheet as the FIRST PAGE.
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State of Delaware
Secretary of State
Division of Corporations
Delivered 02:57 PM 07/09/2004
FILED 03:11 PM 07/09/2004
SRV 040506286 - 3172612 FILE
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CERTIFICATE OF AMENDMENT
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OF
SOURCESUITE LLC
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1. The name of the limited liability company is
SourceSuite LLC
.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company shall be changed from SourceSuite LLC to Insight Interactive, LLC
3. This Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
SourceSuite LLC
this
8
th
day of
July
,
2004
.
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/s/ Elliot Brecher
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Elliot Brecher, Senior Vice President
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TOTAL P.03
Exhibit 3.346
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT
INTERACTIVE, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Interactive Cable Services LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Insight Interactive, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Insight Interactive, LLC.
The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of
the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President,
with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required
by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of
being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i)
neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this
Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the
Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of
every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the
Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by
unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the
Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
,
that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by
any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer,
or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT INTERACTIVE, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INTERACTIVE CABLE SERVICES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Interactive, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Interactive Cable Services LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.347
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT KENTUCKY CAPITAL, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY-EIGHTH DAY OF SEPTEMBER, A.D. 1999, AT 6:30
O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE FIFTH DAY OF JANUARY, A.D. 2001, AT 11:30 O’CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY
COMPANY, “INSIGHT KENTUCKY CAPITAL, LLC”.
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/s/ Jeffrey W.
Bullock
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Jeffrey W. Bullock, Secretary of State
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3103514 8100H
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Authentication: 202953765
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SR# 20165695286
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Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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09/28/99 18:37
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DOW, LOHNES & ALBERTSON
g
302 674 8340
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NO. 727 P003
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CERTIFICATE OF FORMATION
OF
INSIGHT KENTUCKY CAPITAL, LLC
The name of the limited liability company is Insight Kentucky Capital, LLC (the
“
Company
”).
The address of the registered office for the Company in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle. The name of its Registered Agent at such address is The Corporation Trust Company.
The name and mailing address of the Authorized Person is Insight
Communications Company, L.P., 126 E. 56th Street, New York, New York 10022.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation, this 24th day of September, 1999.
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INSIGHT COMMUNICATIONS COMPANY, L.P.,
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Member of Insight Kentucky Capital, LLC
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By:
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Insight Communications Company, Inc., its general partner
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By:
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/s/ Kim D.
Kelly
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Authorized Person
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Name:
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Kim D. Kelly
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Title:
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Executive Vice President
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 06:30 PM 09/28/1999
991408377 - 3103514
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JAN-05-2001 11:09
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C T CORPORATION WASH DC
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202 393 1760 P.02/03
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Certificate of Amendment to Certificate of Formation
of
Insight Kentucky Capital, LLC
It is hereby certified that:
1. The name of the limited liability company (hereinafter called the “limited liability company”) is Insight Kentucky Capital, LLC.
2. The certificate of formation of the limited liability company is hereby amended by striking out Article 3 thereof and by substituting
in lieu of said Article the following new Article;
3.
AUTHORIZED PERSON
The name and mailing address of the Authorized Person is Insight Communications Company, L.P., 810 7th Avenue, 41st Floor, New York, New York
10019.
Executed on this 4
th
day of January, 2001.
[END OF PAGE SIGNATURE PAGE FOLLOWS.]
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STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:30 AM 01/05/2001 010008500 - 3103514
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DCLIB01:1291260-1
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JAN-05-2001 11:09
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C T CORPORATION WASH DC
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202 393 1760 P.03/03
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INSIGHT COMMUNICATIONS COMPANY, L.P.,
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member of Insight Kentucky Capital, LLC
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BY:
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Insight Communications Company, Inc., its general partner
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BY:
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/s/ Elizabeth M. Grier
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Authorized Person
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Name:
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Elizabeth M. Grier
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Title:
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V.P. Administration
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DCLIB01:1291260-1
TOTAL P.03
Exhibit 3.348
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT KENTUCKY
CAPITAL, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Communications Company, L.P., a Delaware limited partnership (the “
Member
”), as the sole member of Insight Kentucky Capital, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Insight Kentucky Capital,
LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests.
The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the
Members acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
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Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT KENTUCKY CAPITAL, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INSIGHT COMMUNICATIONS COMPANY, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Kentucky Capital, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
|
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Charles Fisher
|
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Senior Vice President, Corporate Finance
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James M. Heneghan
|
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
|
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
|
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Senior Vice President, Charter Business
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Frederick J Pappalardo
|
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
|
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Senior Vice President, Human Resources
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Donald Poulter
|
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Senior Vice President, Commercial Operations
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
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Jodi Robinson
|
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
|
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
|
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Group Vice President, Tax
|
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David A. Christman
|
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Senior Vice President
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|
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William F. Osbourn
|
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Senior Vice President & Controller
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Matthew Siegel
|
|
Senior Vice President
|
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|
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Michael W. Quinn
|
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Group Vice President
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Meredith Garwood
|
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Assistant Treasurer
|
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|
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Tom Harding
|
|
Vice President & Assistant Treasurer
|
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|
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Susan A. Waxenberg
|
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Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
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Members
|
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Economic Interest
Percentage
|
|
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Insight Communications Company, L.P.
|
|
|
100
|
%
|
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|
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Total
|
|
|
100
|
%
|
B-1
Exhibit 3.349
|
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Delaware
|
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT KENTUCKY PARTNERS I, L.P.” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF LIMITED PARTNERSHIP, FILED THE THIRTIETH DAY OF OCTOBER, A.D. 1997, AT 9 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “INTERMEDIA PARTNERS VI, L.P.” TO “INSIGHT KENTUCKY PARTNERS I, L.P.”,
FILED THE FIRST DAY OF OCTOBER, A.D. 1999, AT 9 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, FILED THE FIFTH DAY OF NOVEMBER, A.D.
1999, AT 9 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, FILED THE THIRD DAY OF JANUARY, A.D. 2001, AT 11:30 O’CLOCK
A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED
PARTNERSHIP, “INSIGHT KENTUCKY PARTNERS I, L.P.”.
|
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
|
|
2814769 8100H
SR#
20165695310
|
|
|
Authentication: 202953783
Date: 09-08-16
|
|
You may verify this certificate online at
corp.delaware.gov/authver.shtml
|
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|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/30/1997
971368107 – 2814769
|
CERTIFICATE OF LIMITED PARTNERSHIP
OF
INTERMEDIA PARTNERS VI, L.P.
This Certificate of Limited Partnership of INTERMEDIA PARTNERS VI, L.P. (the “Limited Partnership”) is being executed by the
undersigned for the purpose of forming a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act.
1. The
name of the limited partnership is
INTERMEDIA PARTNERS VI, L.P.
2. The address of the registered office of the limited partnership in Delaware is 1013
Centre Road, Wilmington, Delaware 19805. The limited partnership’s registered agent at that address is Corporation Service Company.
3. The names and addresses of the general partners are:
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|
NAME
|
|
ADDRESS
|
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|
|
INTERMEDIA PARTNERS GROUP VI, L.P.
|
|
235 Montgomery Street. Suite 420
|
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|
|
San Francisco, CA 94104
|
[4. Any other information which the general partners choose to include.]
IN WITNESS WHEREOF, the undersigned, constituting all of the general partners of the Partnership, have caused this Certificate of Limited
Partnership
to be duly executed as of the 30
th
day of October 1997.
|
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|
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INTERMEDIA PARTNERS VI, L.P.
|
|
By:
|
|
INTERMEDIA PARTNERS GROUP VI, L.P., its general partner
|
|
By:
|
|
INTERMEDIA CAPITAL PARTNERS VI, L.P., its general partner
|
|
By:
|
|
INTERMEDIA CAPITAL MANAGEMENT VI, LLC its general partner
|
|
By:
|
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INTERMEDIA MANAGEMENT, INC., its manager
|
|
|
|
|
By:
|
|
/s/ Lisa Perreault
|
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|
|
Lisa Perreault
|
|
|
|
Secretary
|
DE LP D-:CERTIFICATE OF LIMITED PARTNERSHIP 05/96
STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INTERMEDIA PARTNERS VI, L.P.
The
undersigned, desiring to amend the Certificate of Limited Partnership of InterMedia Partners VI, L.P. pursuant to the provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as
follows:
|
|
|
|
|
FIRST:
|
|
The name of the Limited Partnership is InterMedia Partners VI, L.P.
|
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|
|
SECOND:
|
|
Article 1 of the Certificate of Limited Partnership shall be amended as follows:
|
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|
|
The name of the limited partnership is Insight Kentucky Partners I, L.P.
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|
THIRD:
|
|
Article 3 of the Certificate of Limited Partnership shall be amended as follows:
|
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|
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|
|
The name and address of the general partner is Insight Communications of Kentucky, L.P., 126 E. 56th Street, New York, New York, 10022.
|
IN WITNESS WHEREOF the undersigned executed this Amendment to the Certificate of Limited Partnership on this 1
st
day of October, 1999.
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
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|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/01/1999
991415112 – 2814769
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By:
|
|
INSIGHT COMMUNICATIONS OF KENTUCKY L.P., general partner of Insight Kentucky Partners I, L.P.
|
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By:
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Insight Midwest, L.P., its general partner
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By:
|
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Insight Communications Company, L.P., its general partner
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By:
|
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Insight Communications Company, Inc., its general partner
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By:
|
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/s/ Kim D. Kelly
|
|
|
|
|
|
|
|
Name:
|
|
Kim D. Kelly
|
|
|
|
Title:
|
|
Executive Vice President
|
- 2 -
|
|
|
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|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/05/1999
991472973 – 2814769
|
STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INSIGHT KENTUCKY PARTNERS I, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of Insight Kentucky Partners I, L.P. pursuant to the provisions of
Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
|
|
|
|
|
FIRST:
|
|
The name of the Limited Partnership is Insight Kentucky Partners I, L.P.
|
|
|
|
|
SECOND:
|
|
Article 2 of the Certificate of Limited Partnership shall be amended as follows:
|
|
|
|
|
|
|
The address of the registered agent of the limited partnership in Delaware is 1209 Orange Street, Wilmington, Delaware 19801. The limited partnership’s registered agent at that address is The Corporation Trust
Company.
|
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this
5th
day of November, 1999.
|
|
|
|
|
|
|
By:
|
|
INSIGHT COMMUNICATIONS OF KENTUCKY L.P., general partner of Insight Kentucky Partners I, L.P.
|
|
|
|
|
By:
|
|
Insight Midwest, L.P., its general partner
|
|
|
|
|
By:
|
|
Insight Communications Company, L.P., its general partner
|
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|
|
|
By:
|
|
Insight Communications Company, Inc., its general partner
|
|
|
|
|
By:
|
|
/s/ Kim D. Kelly
|
|
|
|
Name:
|
|
Kim D. Kelly
|
|
|
|
Title:
|
|
Executive Vice President
|
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State of Delaware - Division of Corporations
|
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FAX
|
|
DOCUMENT FILING SHEET
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Priority 1
(Two Hr.
Service)
|
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Priority 2
(Same Day)
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Priority 3
(24 Hour)
|
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Priority 4
(Must Approvals)
|
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Priority 5
(Reg. Approvals)
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Priority 6
(Reg. Work)
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DATE SUBMITTED
|
|
January 3, 2000
|
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REQUESTOR NAME
|
|
THE CORPORATION TRUST COMPANY
|
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|
|
FILE DATE
|
|
January 3, 2001
|
|
ADDRESS
|
|
WILM/ Mickey M.
Grabowski /ler
|
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|
FILE TIME
|
|
11:30 a.m.
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ATTN.
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PHONE
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NAME of COMPANY/ENTITY
|
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Insight Kentucky Partners I, L.P.
|
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010004021
|
|
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2814769
|
|
|
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9000010
|
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|
SRV NUMBER
|
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION NO.
|
|
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|
|
|
TYPE OF DOCUMENT
Amendment
|
|
DOCUMENT CODE
17-202
|
|
|
|
CHANGE of NAME
CHANGE of
AGENT/OFFICE
CHANGE OF STOCK
|
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CORPORATIONS
|
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FRANCHISE
TAX YEAR
|
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$
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FILING FEE TAX
|
|
$
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RECEIVING & INDEXING
|
|
$
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|
CERTIFIED COPIES NO.
one
|
|
$
|
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SPECIAL SERVICES
|
|
$
|
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KENT COUNTY RECORDER
|
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$
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NEW CASTLE COUNTY RECORDER
|
|
$
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SUSSEX COUNTY RECORDER
|
|
$
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TOTAL
|
|
$
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METHOD of RETURN
|
|
MESSENGER/PICKUP
FED. EXPRESS Acct.#
REGULAR MAIL
FAX No.
OTHER
|
|
|
|
COMMMENTS/FILING INSTRUCTIONS
|
|
*
|
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|
|
CREDIT CARD CHARGES
|
|
You have my authorization to charge my credit card for this service:
|
|
-
-
-
Exp. Date
|
|
Signature
Printed Name
|
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XX
|
|
AGENT USE ONLY
|
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|
INSTRUCTIONS
|
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|
* 3496599
|
|
|
|
1.
|
|
Full shade in the required Priority square using a dark pencil or marker, staying within the square.
|
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2.
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|
Each request must be submitted as a separate item, with its own Filing sheet as the FIRST PAGE.
|
STATE OF DELAWARE
AMENDMENT TO THE
CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INSIGHT KENTUCKY PARTNERS I, L.P.
It is hereby
certified that:
FIRST: The name of the limited partnership (hereinafter called the “partnership”) is Insight Kentucky Partners
I, L.P.
SECOND: Pursuant to provisions of Section 17-202, Title 6, Delaware Code, Article 3 of the Certificate of Limited Partnership is
amended as follows:
The name and address of the general partner is:
|
|
|
|
|
NAME
|
|
ADDRESS
|
|
Insight Communications
|
|
810 7th Avenue, 41st Floor,
|
|
of Kentucky, L.P
|
|
New York, NY 10019
|
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
|
|
|
|
|
DCLIB01:1290161-1
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 01/03/2001
010004021 – 2814769
|
Signed on this 2
nd
day of January, 2001.
|
|
|
|
|
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|
|
INSIGHT COMMUNICATIONS OF KENTUCKY, L.P., general partner of Insight Kentucky Partners I, L.P.
|
|
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|
|
BY:
|
|
Insight Midwest, L.P., its sole member
|
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|
|
BY:
|
|
Insight Communications Company, L.P, its
|
|
|
|
general partner
|
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|
|
BY:
|
|
Insight Communications Company, Inc., its
|
|
|
|
general partner
|
|
|
|
|
|
|
/s/ Elizabeth M. Grier
|
|
|
|
Name:
|
|
Elizabeth M. Grier
|
|
|
|
Title:
|
|
V.P. Administration
|
DCLIB01:1290161-1
Exhibit 3.350
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INSIGHT KENTUCKY
PARTNERS I, L.P.
(A Delaware Limited Partnership)
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INSIGHT KENTUCKY PARTNERS I, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”) is entered into as of May 18, 2016 by and between Insight Communications of Kentucky, L.P., a Delaware limited partnership as the general partner (the “
General Partner
”), and Insight Kentucky Capital,
LLC, a Delaware limited liability company as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of Insight Kentucky Partners I, L.P., a Delaware limited partnership (the
“
Partnership
”).
W I T N E S S E T H :
WHEREAS, the Partnership was formed as a Delaware limited partnership pursuant to a Certificate of Limited Partnership (the
“
Certificate of Limited Partnership
”) filed in the office of the Secretary of State of the State of Delaware;
WHEREAS,
the Partners desire to continue the Partnership as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et seq
.
, as amended from time to time (the “
Act
”), and to amend and
restate any and all prior limited partnership agreements of the Partnership as follows:
SECTION 1.
General
.
(a) Effective as of the date and time of filing of the Certificate of Limited Partnership in the office of the Secretary of State of the State
of Delaware, the Partnership was formed as a limited partnership under the Act. Except as expressly provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be
governed by the Act.
(b) The name of the Partnership shall be “Insight Kentucky Partners I, L.P.” The business of the
Partnership shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The registered
agent shall be as stated in the Certificate of Limited Partnership or as otherwise determined by the General Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite
400, St. Louis, MO 63131. At any time, the General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the date of the filing of the Certificate of Limited Partnership in the office of the Secretary
of State of the State of Delaware and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s) shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be
conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner
interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the
authority of, and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The General Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such
authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were
elected.
The General Partner(s) shall have the authority to convert the Partnership into a limited liability company and to take all
actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by applicable law, each General
Partner shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
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No annual or regular meetings of the General Partner(s) or the Partners are required. The
General Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors
.
(i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business
of the Partnership to a Board of Directors (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be
done by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the members of the
Board may not be assigned or delegated to any person or entity.
(ii) Except as otherwise provided herein, members of the Board shall
possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
(iii) The number of directors shall initially be one (4), which number may be changed from time to time by the General Partner(s). The initial
directors shall be Richard R. Dykhouse, Charles Fisher, Thomas E. Proost and Daniel J. Bollinger.
(iv) Each director shall be appointed
by the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
(v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for attendance at
any meeting of the Board;
provided
,
however
, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner(s) shall be required
to:
(i) alter the primary purposes of the Partnership as set forth in Section 2;
(ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
(iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
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(iv) enter into or amend any agreement which provides for the management of the business or
affairs of the Partnership by a person other than the General Partner(s);
(v) change or reorganize the Partnership into any other legal
form;
(vi) amend this Agreement;
(vii) approve a merger or consolidation with another entity;
(viii) sell all or substantially all of the assets of the Partnership;
(ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
(x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
(xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
(xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
(xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
(xiv) materially change any of the tax reporting positions or elections of the Partnership;
(xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the General Partner(s).
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(d)
Board of Director Meetings
.
(i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from
time to time be determined by the Board, but not less often than annually.
(ii)
Special Meetings.
Special meetings of
the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of
Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
(iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of
conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such
meeting.
(iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by
statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be
given to any director not present at such meeting.
(v)
Action Without Meeting.
Unless otherwise restricted by the
Certificate or this Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties
to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably believes
to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within
the scope of authority conferred by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers
.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including
a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual. The
prior officers of the Partnership are hereby removed and the officers of the Partnership shall be as set forth on
Schedule A
hereto (as such Exhibit may be amended by the written consent of the General Partner(s)).
-5-
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected
by and shall hold office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of
the Board, the General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers
.
(i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions
of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the General Partner(s)
to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior
available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed
upon him.
(ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or
her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary,
any Senior Vice President shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
(iii)
The
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership
or such other place as the Board may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from
time to time by the General Partner(s) or the Board.
(iv)
The Treasurer.
The Treasurer shall have custody of the
Partnership funds and securities and shall keep or cause to be kept full and accurate accounts of
-6-
receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of
the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner(s) or the Board.
SECTION 6.
Partners
.
(a) The Partners of the Partnership shall be set forth on
Schedule B
hereto. Other persons or entities may be admitted as Partners from
time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and
obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c)
Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in
other activities or business ventures of any kind or character whatsoever. Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct,
or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other
assets as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule
B
). Liquidating distributions shall be divided among the Partners in accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-1(b)(2)(iv)), and such
liquidating distributions shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
SECTION 8.
Allocations
.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in
Schedule B
).
(b) All allocations of Partnership income, gain, loss, deductions, and other items
shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic
effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of any limited
dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which this clause (i) is
satisfied, such Partner’s capital account shall be reduced for the
-7-
items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted as provided in the Regulations related thereto), and (ii)
a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the
preceding sentence (the “
Regulatory Allocations
”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be offset
either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory Allocations), the
General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s capital account
balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up
.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner(s) or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In
winding up the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to
(i) causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims
against the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed
that a reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a
liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge,
hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its
-8-
partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided
,
however
, that this Section 10 shall
not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General
Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished
by the amendment of this Agreement.
SECTION 12.
Tax Matters.
As of the date of this Agreement, the Partnership is a disregarded
entity for U.S. federal income tax purposes. So long as the Partnership is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Partnership be disregarded as an entity separate
from its owner and its activities be treated as a division of such owner. In the event that the Partnership has two or more partners for U.S. federal income tax purposes, it is intended that (i) the Partnership shall be treated as a partnership
for U.S. federal income tax purposes, and the Partners shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts
and liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses,
-9-
damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such
Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not
constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any
claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct
or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the
Partnership and not from the Partners.
SECTION 14.
Miscellaneous
.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action
on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of
such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the General Partner(s) may
approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts
of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first written above.
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INSIGHT COMMUNICATIONS OF KENTUCKY, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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INSIGHT KENTUCKY CAPITAL, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[
Signature Page to LP Agreement of Insight Kentucky Partners I, L.P.
]
SCHEDULE A
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government
Affairs
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Name
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Title
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
|
In addition to the foregoing officers, officers of the Partnership immediately prior to the date hereof with
the titles of senior vice president or below shall remain as officers of the Partnership in such capacities.
SCHEDULE B
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Partner Name
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Number and Type of Units
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Insight Communications of Kentucky, L.P.
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99.999 general partner
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Insight Kentucky Capital, LLC
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0.001 limited partner
|
Exhibit 3.351
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Delaware
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Page 1
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The First State
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|
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT KENTUCKY PARTNERS II, L.P.” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF LIMITED PARTNERSHIP, FILED THE THIRTIETH DAY OF OCTOBER, A.D. 1997, AT 9 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “INTERMEDIA PARTNERS OF KENTUCKY, L.P.” TO “INSIGHT KENTUCKY PARTNERS II,
L.P.”, FILED THE FIRST DAY OF OCTOBER, A.D. 1999, AT 12:49 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE FIFTH DAY OF
NOVEMBER, A.D. 1999, AT 9 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, FILED THE TENTH DAY OF JANUARY, A.D. 2001, AT 10:30
O’CLOCK A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED PARTNERSHIP, “INSIGHT KENTUCKY PARTNERS II, L.P.”.
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/s/ Jeffrey W. Bullock
Jeffrey W. Bullock, Secretary of State
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2814772 8100H
SR# 20165695346
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Authentication: 202953798
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/30/1997
971368113 – 2814772
|
CERTIFICATE OF LIMITED PARTNERSHIP
OF
INTERMEDIA PARTNERS OF
KENTUCKY, L.P.
This Certificate of Limited Partnership of INTERMEDIA PARTNERS OF KENTUCKY, L.P. (the “Limited Partnership”) is being executed by
the undersigned for the purpose of forming a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act.
1. The
name of the limited partnership is
INTERMEDIA PARTNERS OF KENTUCKY, L.P.
2. The address of the registered office of the limited partnership in Delaware is 1013 Centre Road, Wilmington, Delaware 19805. The limited
partnership’s registered agent at that address is Corporation Service Company.
3. The names and addresses of the general partners
are:
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NAME
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ADDRESS
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INTERMEDIA PARTNERS VI, L.P.
|
|
235 Montgomery Street, Suite 420
San Francisco,
CA 94104
|
[4. Any other information which the general partners choose to include.]
IN WITNESS WHEREOF, the undersigned, constituting all of the general partners of the Partnership, have caused this Certificate of Limited
Partnership
to be duly executed as of the 30
th
day of October 1997.
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INTERMEDIA PARTNERS OF KENTUCKY, L.P.
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By:
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INTERMEDIA PARTNERS VI, L.P., its general partner
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By:
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|
INTERMEDIA PARTNERS GROUP VI, L.P., its general partner
|
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By:
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|
INTERMEDIA CAPITAL PARTNERS VI, L.P., its general partner
|
|
BY:
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|
INTERMEDIA CAPITAL MANAGEMENT VI, LLC, its general partner
|
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By:
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|
INTERMEDIA MANAGEMENT, INC., its manager
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By:
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/s/ Lisa Perreault
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Lisa Perreault
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Secretary
|
DE LP D-:CERTIFICATE OF LIMITED PARTNERSHIP 05/96
STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INTERMEDIA PARTNERS OF KENTUCKY, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of InterMedia Partners of Kentucky, L.P. pursuant to the provisions
of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
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FIRST:
|
|
The name of the Limited Partnership is InterMedia Partners of Kentucky, L.P.
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SECOND:
|
|
Article 1 of the Certificate of Limited Partnership shall be amended as follows:
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The name of the limited partnership is Insight Kentucky Partners II, L.P.
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THIRD:
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|
Article 3 of the Certificate of Limited Partnership shall be amended as follows:
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The name and address of the general partner is Insight Kentucky Partners I, L.P., 126 E. 56th Street, New York, New York, 10022.
|
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this
1
st
day of October, 1999.
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:49 PM 10/01/1999
991415111 – 2814772
|
DCLIB01:1215937-2
DE-Certificate of Amendment (IPK)
High Yield
|
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|
By:
|
|
INSIGHT KENTUCKY PARTNERS I, L.P.,
general partner of Insight Kentucky Partners II, L.P.
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By:
|
|
Insight Communications of Kentucky, L.P., its general partner
|
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|
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By:
|
|
Insight Midwest, L.P., its general partner
|
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By:
|
|
Insight Communications Company, L.P., its general partner
|
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By:
|
|
Insight Communications Company, Inc., its general partner
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By:
|
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/s/ Kim D. Kelly
|
|
|
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|
|
Name:
|
|
Kim D. Kelly
|
|
|
|
Title:
|
|
Executive Vice President
|
DCLIB01:1215937-2
DE-Certificate of Amendment (IPK)
High Yield
- 2 -
|
|
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 11/05/1999
991472986 – 2814772
|
|
|
STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INSIGHT KENTUCKY PARTNERS II, L.P.
The undersigned, desiring to amend the Certificate of Limited Partnership of Insight Kentucky Partners II, L.P. pursuant to the provisions of
Section 17-202 of the Revised Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
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|
|
|
FIRST:
|
|
The name of the Limited Partnership is Insight Kentucky Partners II, L.P.
|
|
|
|
|
SECOND:
|
|
Article 2 of the Certificate of Limited Partnership shall be amended as follows:
|
|
|
|
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|
|
The address of the registered agent of the limited partnership in Delaware is 1209 Orange Street, Wilmington, Delaware 19801. The limited partnership’s registered agent at that address is The Corporation Trust
Company.
|
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited Partnership on this
5th
day of November, 1999.
|
|
|
|
|
|
|
By:
|
|
INSIGHT KENTUCKY PARTNERS I, L.P., general partner of Insight Kentucky Partners II, L.P.
|
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|
|
|
By:
|
|
Insight Communications of Kentucky, L.P., its general partner
|
|
|
|
|
By:
|
|
Insight Midwest, L.P., its general partner
|
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|
|
|
By:
|
|
Insight Communications Company, L.P., its general partner
|
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|
|
|
By:
|
|
Insight Communications Company, Inc., its general partner
|
|
|
|
|
By:
|
|
/s/ Kim D. Kelly
|
|
|
|
Name:
|
|
Kim D. Kelly
|
|
|
|
Title:
|
|
Executive Vice President
|
DCLIB01:1222513-1
STATE OF DELAWARE
AMENDMENT TO THE
CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INSIGHT KENTUCKY PARTNERS II, L.P.
It is hereby
certified that:
FIRST: The name of the limited partnership (hereinafter called the “partnership”) is Insight Kentucky Partners
II, L.P.
SECOND: Pursuant to provisions of Section 17-202, Title 6, Delaware Code, Article 3 of the Certificate of Limited
Partnership is amended as follows:
The name and address of the general partner is:
|
|
|
|
|
NAME
|
|
ADDRESS
|
|
Insight Kentucky Partners I, L.P.
|
|
810 7th Avenue, 41st Floor
New York, NY
10019
|
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
|
|
|
|
|
DCLIB01:1290177-1
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:30 AM 01/10/2001
010015555 – 2814772
|
Signed on this 5
th
day of January 2001.
|
|
|
|
|
|
|
|
|
INSIGHT KENTUCKY PARTNERS I,
L.P.,
the general partner of Insight Kentucky Partners, II, L.P.
|
|
|
|
|
BY:
|
|
Insight Communications of Kentucky, L.P., it general partner
|
|
|
|
|
BY:
|
|
Insight Midwest Holdings, LLC, its general partner
|
|
|
|
|
BY:
|
|
Insight Midwest, L.P., its sole member
|
|
|
|
|
BY:
|
|
Insight Communications Company, L.P., its general partner
|
|
|
|
|
BY:
|
|
Insight Communications Company, Inc., its general partner
|
|
|
|
|
|
|
/s/ Elizabeth M. Grier
|
|
|
|
Name:
|
|
Elizabeth M. Grier
|
|
|
|
Title:
|
|
V.P. Administration
|
Exhibit 3.352
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INSIGHT KENTUCKY
PARTNERS II, L.P.
(A Delaware Limited Partnership)
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INSIGHT KENTUCKY PARTNERS II, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”) is entered into as of May 18, 2016 by and between Insight Kentucky Partners I, L.P., a Delaware limited partnership as the general partner (the “
General Partner
”), and Insight Kentucky Capital, LLC, a
Delaware limited liability company as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of Insight Kentucky Partners II, L.P., a Delaware limited partnership (the
“
Partnership
”).
W I T N E S S E T H :
WHEREAS, the Partnership was formed as a Delaware limited partnership pursuant to a Certificate of Limited Partnership (the
“
Certificate of Limited Partnership
”) filed in the office of the Secretary of State of the State of Delaware;
WHEREAS,
the Partners desire to continue the Partnership as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del. C. § 17-101
et seq
.
, as amended from time to time (the “
Act
”), and to amend and
restate any and all prior limited partnership agreements of the Partnership as follows:
SECTION 1.
General
.
(a) Effective as of the date and time of filing of the Certificate of Limited Partnership in the office of the Secretary of State of the State
of Delaware, the Partnership was formed as a limited partnership under the Act. Except as expressly provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be
governed by the Act.
(b) The name of the Partnership shall be “Insight Kentucky Partners II, L.P.” The business of the
Partnership shall be conducted under such name or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain an office and registered Agent in the State of Delaware as required by the Act. The
registered agent shall be as stated in the Certificate of Limited Partnership or as otherwise determined by the General Partner(s). The registered office or registered agent of the Partnership may be changed from time to time by the General
Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite
400, St. Louis, MO 63131. At any time, the General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the date of the filing of the Certificate of Limited Partnership in the office of the Secretary
of State of the State of Delaware and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s) shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be
conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner
interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the
authority of, and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The General Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such
authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were
elected.
The General Partner(s) shall have the authority to convert the Partnership into a limited liability company and to take all
actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by applicable law, each General
Partner shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
-2-
No annual or regular meetings of the General Partner(s) or the Partners are required. The
General Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors
.
(i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business
of the Partnership to a Board of Directors (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be
done by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the members of
the Board may not be assigned or delegated to any person or entity.
(ii) Except as otherwise provided herein, members of the Board shall
possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
(iii) The number of directors shall initially be one (4), which number may be changed from time to time by the General Partner(s). The
initial directors shall be Richard R. Dykhouse, Charles Fisher, Thomas E. Proost and Daniel J. Bollinger.
(iv) Each director shall be
appointed by the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
(v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for attendance at
any meeting of the Board;
provided
,
however
, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner(s) shall be required
to:
(i) alter the primary purposes of the Partnership as set forth in Section 2;
(ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
(iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
-3-
(iv) enter into or amend any agreement which provides for the management of the business or
affairs of the Partnership by a person other than the General Partner(s);
(v) change or reorganize the Partnership into any other legal
form;
(vi) amend this Agreement;
(vii) approve a merger or consolidation with another entity;
(viii) sell all or substantially all of the assets of the Partnership;
(ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
(x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
(xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
(xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
(xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
(xiv) materially change any of the tax reporting positions or elections of the Partnership;
(xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the General Partner(s).
-4-
(d)
Board of Director Meetings
.
(i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from
time to time be determined by the Board, but not less often than annually.
(ii)
Special Meetings.
Special meetings of
the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of
Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
(iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of
conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such
meeting.
(iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the
directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by
statute, the Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall
be given to any director not present at such meeting.
(v)
Action Without Meeting.
Unless otherwise restricted by the
Certificate or this Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of
proceedings of the Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties
to the Partnership and the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably believes
to be in the best interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within
the scope of authority conferred by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers
.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including
a Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual. The
prior officers of the Partnership are hereby removed and the officers of the Partnership shall be as set forth on
Schedule A
hereto (as such Exhibit may be amended by the written consent of the General Partner(s)).
-5-
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected
by and shall hold office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of
the Board, the General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers
.
(i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions
of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the General Partner(s)
to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior
available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed
upon him.
(ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or
her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary,
any Senior Vice President shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
(iii)
The
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership
or such other place as the Board may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from
time to time by the General Partner(s) or the Board.
(iv)
The Treasurer.
The Treasurer shall have custody of the
Partnership funds and securities and shall keep or cause to be kept full and accurate accounts of
-6-
receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of
the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner(s) or the Board.
SECTION 6.
Partners
.
(a) The Partners of the Partnership shall be set forth on
Schedule B
hereto. Other persons or entities may be admitted as Partners
from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and
obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c)
Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in
other activities or business ventures of any kind or character whatsoever. Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct,
or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other
assets as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule
B
). Liquidating distributions shall be divided among the Partners in accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-1(b)(2)(iv)), and such
liquidating distributions shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
SECTION 8.
Allocations
.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in
Schedule B
).
(b) All allocations of Partnership income, gain, loss, deductions, and other items
shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic
effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of any limited
dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which this clause (i) is
satisfied, such Partner’s capital account shall be reduced for the
-7-
items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted as provided in the Regulations related thereto), and (ii)
a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the
preceding sentence (the “
Regulatory Allocations
”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory
Allocations), the General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s
capital account balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up
.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner(s) or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In
winding up the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to
(i) causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims
against the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed
that a reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a
liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge,
hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its
-8-
partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided
,
however
, that this Section 10 shall
not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General
Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished
by the amendment of this Agreement.
SECTION 12.
Tax Matters.
As of the date of this Agreement, the Partnership is a disregarded
entity for U.S. federal income tax purposes. So long as the Partnership is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Partnership be disregarded as an entity separate
from its owner and its activities be treated as a division of such owner. In the event that the Partnership has two or more partners for U.S. federal income tax purposes, it is intended that (i) the Partnership shall be treated as a partnership
for U.S. federal income tax purposes, and the Partners shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts
and liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses,
-9-
damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such
Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not
constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any
claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct
or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the
Partnership and not from the Partners.
SECTION 14.
Miscellaneous
.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action
on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of
such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the General Partner(s) may
approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts
of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-10-
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first written above.
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INSIGHT KENTUCKY PARTNERS I, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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INSIGHT KENTUCKY CAPITAL, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[
Signature Page to LP Agreement of Insight Kentucky Partners II, L.P.
]
SCHEDULE A
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Name
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Title
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Partnership immediately prior to the date hereof with
the titles of senior vice president or below shall remain as officers of the Partnership in such capacities.
SCHEDULE B
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Partner Name
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Number and Type of Units
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Insight Kentucky Partners II, L.P.
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99.999 general partner
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Insight Kentucky Capital, LLC
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0.001 limited partner
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Exhibit 3.353
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT MIDWEST HOLDINGS, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE FOURTEENTH DAY OF DECEMBER, A.D. 2000, AT 10:30
O’CLOCK A.M.
CERTIFICATE OF MERGER, FILED THE THIRTEENTH DAY OF NOVEMBER, A.D. 2003, AT 12:43 O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY
COMPANY, “INSIGHT MIDWEST HOLDINGS, LLC”.
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/s/ Jeffrey W. Bullock
Jeffrey W. Bullock, Secretary of State
Authentication: 202953811
Date:
09-08-16
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3329858 8100H
SR#
20165695368
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:30 AM 12/14/2000
001626587 – 3329858
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CERTIFICATE OF FORMATION
OF
INSIGHT MIDWEST HOLDINGS, LLC
The name of the limited liability company is Insight Midwest Holdings, LLC (the
“LLC”).
The address of the registered office of the LLC in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, 19801.
The name and address of the registered agent for service of process on
the LLC in the State of Delaware are The Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, 19801.
The name and address of the Authorized Person are Insight Midwest,
L.P., 810 7th Avenue, New York, New York 10019.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation, this 13
th
day of December, 2000.
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INSIGHT MIDWEST, L.P.
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By:
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Insight Communications Company, L.P., its general partner
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By:
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Insight Communications Company, Inc., its general partner
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By:
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/s/ Elliot Brecher
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Name:
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Elliot Brecher
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Title:
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Senior Vice President, General Counsel
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DCLIB01:1287437-2
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NOV-13-2003 12:10 212 894 8690
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212 894 8690 P.06/07
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CERTIFICATE OF MERGER
OF
COAXIAL LLC, COAXIAL DSM LLC,
COAXIAL DJM LLC, AND
INSIGHT HOLDINGS OF OHIO, LLC
INTO
INSIGHT MIDWEST HOLDINGS,
LLC
Pursuant to Sec. 18-209 of the Delaware Limited Liability Company Act, the undersigned surviving limited liability company submits the following
Certificate of Merger for filing and certifies that:
1. The name and jurisdiction of formation or organization of each of the limited liability companies
which are to merge are:
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NAME OF ENTITY
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JURISDICTION
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Coaxial LLC
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Delaware
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Coaxial DSM LLC
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Delaware
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Coaxial DJM LLC
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Delaware
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Insight Holdings of Ohio, LLC
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Delaware
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Insight Midwest Holdings, LLC
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Delaware
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2. An agreement of merger has been approved and executed by each of the domestic limited liability companies which is to
merge.
3. The name of the surviving limited liability company is: Insight Midwest Holdings, LLC.
4. The agreement of merger is on file at a place of business of the surviving limited liability company which is located at 810 Seventh Avenue, New York, New
York, 10019.
5. A copy of the agreement of merger will be furnished by the surviving limited liability company, on request and without cost, to any
member of any domestic limited liability company which is to merge.
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17391313\V-2
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:05 PM 11/13/2003
FILED 12:43 PM 11/13/2003
SRV 030729734 – 3329858 FILE
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NOV-13-2003 12:11 212 894 8690
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212 894 8690 P.07/07
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IN WITNESS WHEREOF, this Certificate of Merger has been duly executed as of October 1, 2003,
and is being filed in accordance with Sec. 18-209 of the Act by an authorized person of the surviving limited liability company in the merger.
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INSIGHT MIDWEST HOLDINGS, LLC
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By:
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/s/ Elliot Brecher
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Name:
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Elliot Brecher
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Title:
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SVP & General Counsel
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17391313\V-2
TOTAL P.07
Exhibit 3.354
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT MIDWEST
HOLDINGS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Midwest, L.P., a Delaware limited partnership (the “
Member
”), as the sole member of Insight Midwest Holdings, LLC, a Delaware limited liability company (the “
Company
”),
the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Midwest Holdings, LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy,
each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by
unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any
position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as
amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT MIDWEST HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INSIGHT MIDWEST, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Midwest Holdings, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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|
Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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|
Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
|
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Insight Midwest, L.P.
|
|
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100
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%
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|
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|
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|
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Total
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100
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%
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B-1
Exhibit 3.355
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT MIDWEST, L.P.” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF LIMITED PARTNERSHIP, FILED THE TWENTY-EIGHTH DAY OF SEPTEMBER, A.D. 1999,
AT 6:30 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, FILED THE THIRD DAY OF JANUARY, A.D. 2001, AT 11:30 O’CLOCK
A.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID
LIMITED PARTNERSHIP, “INSIGHT MIDWEST, L.P.”.
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
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3103515 8100H
SR#
20165696076
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Authentication: 202954120
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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09/28/99
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18:37
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DOW, LOHNES & ALBERTSON
g
302 674
8340
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NO. 727 P002
|
CERTIFICATE OF LIMITED PARTNERSHIP
FOR
INSIGHT MIDWEST, L.P.
THE UNDERSIGNED
, desiring to form a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act, 6 Delaware
Code, Chapter 17, do hereby certify as follows:
FIRST:
The name of the limited partnership is Insight Midwest, L.P. (the
“
Partnership
”).
SECOND
: The name and address of the registered agent for the Partnership is The Corporation Trust Company, 1209
Orange Street, City of Wilmington, County of New Castle, State of Delaware.
THIRD
: The name and mailing address of the general partner for the
Partnership is Insight Communications Company, L.P., 126 E. 56th Street, New York, New York 10022.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Limited Partnership, this 24th day of September, 1999.
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INSIGHT COMMUNICATIONS COMPANY, L.P., General Partner of Insight Midwest, L.P.
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By:
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Insight Communications Company, Inc.,
its
general partner
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By:
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/s/ Kim D. Kelly
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Name: Kim D. Kelly
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Title: Executive Vice President
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 06:30 PM 09/28/1999
991408379 – 3103515
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FAX
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|
State of Delaware - Division of Corporations
DOCUMENT FILING SHEET
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Priority 1
(Two Hr.
Service)
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Priority 2
(Same Day)
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Priority 3
(24 Hour)
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Priority 4
(Must
Approvals)
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Priority 5
(Reg.
Approvals)
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Priority 6
(Reg. Work)
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DATE SUBMITTED
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January 3, 2000
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REQUESTOR NAME
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THE CORPORATION TRUST COMPANY
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FILE DATE
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January 3, 2001
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ADDRESS
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WILM/ Mickey M. Grabowski /ler
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FILE TIME
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11:30 a.m.
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ATTN.
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PHONE
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NAME of COMPANY/ENTITY
Insight Midwest, L.P.
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010004030
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3103515
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9000010
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SRV NUMBER
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION NO.
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TYPE OF DOCUMENT
Amendment
|
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DOCUMENT CODE
17-202
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|
CHANGE of NAME
CHANGE of AGENT/OFFICE
CHANGE OF STOCK
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CORPORATIONS
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FRANCHISE
TAX YEAR
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$
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FILING FEE TAX
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$
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RECEIVING & INDEXING
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$
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CERTIFIED COPIES NO.
one
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$
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SPECIAL SERVICES
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$
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KENT COUNTY RECORDER
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$
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NEW CASTLE COUNTY RECORDER
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$
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SUSSEX COUNTY RECORDER
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$
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TOTAL
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$
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METHOD of RETURN
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|
MESSENGER/PICKUP
|
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FED. EXPRESS Acct.#
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REGULAR MAIL
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FAX No.
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OTHER
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COMMENTS/FILING
INSTRUCTIONS
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*
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CREDIT CARD CHARGES
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You have my authorization to charge my credit card for this service:
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-
-
-
Exp. Date
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Signature
Printed Name
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XX
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AGENT USE ONLY
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INSTRUCTIONS
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*3496599
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1.
|
|
Full shade in the required Priority square using a dark pencil or marker, staying within the square.
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2.
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Each request must be submitted as a separate item,
with its own Filing sheet as the FIRST PAGE.
|
STATE OF DELAWARE
AMENDMENT TO THE
CERTIFICATE OF
LIMITED PARTNERSHIP
OF
INSIGHT MIDWEST, L.P.
It is hereby certified
that:
FIRST: The name of the limited partnership (hereinafter called the “partnership”) is Insight Midwest, L.P.
SECOND: Pursuant to provisions of Section 17-202, Title 6, Delaware Code, Article 3 of the Certificate of Limited Partnership is amended as
follows:
THIRD: The name and mailing address of the general partner for the Partnership is Insight Communications Company, L.P., 810 7th
Avenue, 41st Floor, New York, NY 10019.
[END OF PAGE. SIGNATURE PAGE FOLLOWS.]
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STATE OF DELAWARE
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SECRETARY OF STATE
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DIVISION OF CORPORATIONS
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DCLIB01:1290185-1
|
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|
|
FILED 11:30 AM 01/03/2001
|
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010004030 – 3103515
|
Signed on this 2
nd
day of January, 2001.
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BY:
|
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INSIGHT COMMUNICATIONS COMPANY, L.P., its general partner
|
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BY:
|
|
Insight Communications Company, Inc., its general partner
|
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/s/ Elizabeth M. Grier
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Name:
|
|
Elizabeth M. Grier
|
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|
Title:
|
|
V.P. Administration
|
DCLIB01:1290185-1
Exhibit 3.356
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
INSIGHT MIDWEST,
L.P.
(A Delaware Limited Partnership)
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INSIGHT MIDWEST, L.P., A DELAWARE LIMITED PARTNERSHIP (this
“
Agreement
”) is entered into as of May 18, 2016 by and between Insight Communications Company, L.P., a Delaware limited partnership as the general partner (the “
General Partner
”), and ICI Holdings, LLC, a Delaware
limited liability company as the limited partner (each, a “
Partner
” or collectively, the “
Partners
”), as the partners of Insight Midwest, L.P., a Delaware limited partnership (the “
Partnership
”).
WITNESSETH:
WHEREAS, the
Partnership was formed as a Delaware limited partnership pursuant to a Certificate of Limited Partnership (the “
Certificate of Limited Partnership
”) filed in the office of the Secretary of State of the State of Delaware;
WHEREAS, the Partners desire to continue the Partnership as a limited partnership under the Delaware Revised Limited Partnership Act, 6 Del.
C. § 17-101
et seq
.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited partnership agreements of the Partnership as follows:
SECTION 1.
General
.
(a)
Effective as of the date and time of filing of the Certificate of Limited Partnership in the office of the Secretary of State of the State of Delaware, the Partnership was formed as a limited partnership under the Act. Except as expressly
provided herein, the rights and obligations of the Partners in connection with the regulation and management of the Partnership shall be governed by the Act.
(b) The name of the Partnership shall be “Insight Midwest, L.P.” The business of the Partnership shall be conducted under such name
or any other name or names that the General Partner(s) shall determine from time to time.
(c) The Partnership shall continuously maintain
an office and registered Agent in the State of Delaware as required by the Act. The registered agent shall be as stated in the Certificate of Limited Partnership or as otherwise determined by the General Partner(s). The registered office or
registered agent of the Partnership may be changed from time to time by the General Partner(s).
(d) The principal place of business of the Partnership shall be at 12444 Powerscourt Drive, Suite
400, St. Louis, MO 63131. At any time, the General Partner(s) may change the location of the Partnership’s principal place of business.
(e) The term of the Partnership commenced on the date of the filing of the Certificate of Limited Partnership in the office of the Secretary
of State of the State of Delaware and will continue and have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f) The General Partner(s) shall cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or
similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable. The General Partner(s) shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business.
SECTION 2.
Purposes.
The Partnership was formed for the object and purpose of, and the nature of the business to be
conducted by the Partnership is, engaging in any lawful act or activity for which limited partnerships may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing.
SECTION 3.
Powers.
The Partnership shall have all powers necessary, appropriate or incidental to the accomplishment of its
purposes and all other powers conferred upon a limited partnership pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by General Partner(s).
Each person or entity shown on
Schedule A
as holding a General Partner
interest shall be a General Partner of the Partnership. Except as otherwise required by applicable law and as provided below with respect to the Board of Directors, the powers of the Partnership shall at all times be exercised by or under the
authority of, and the business, property and affairs of the Partnership shall be managed by, or under the direction of, the General Partner(s).
The General Partner(s) shall be authorized to elect, remove or replace directors and officers of the Partnership, who shall have such
authority with respect to the management of the business and affairs of the Partnership as set forth herein or as otherwise specified by the General Partner(s) in the resolution or resolutions pursuant to which such directors or officers were
elected.
The General Partner(s) shall have the authority to convert the Partnership into a limited liability company and to take all
actions necessary, convenient, desirable or incidental to such conversion.
Except as otherwise required by applicable law, each General
Partner shall be authorized to execute or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Partnership.
-2-
No annual or regular meetings of the General Partner(s) or the Partners are required. The
General Partner(s) may, by written consent, take any action which it is otherwise required or permitted to take at a meeting.
(b)
Board of Directors
.
(i) Notwithstanding paragraph (a) above, the General Partner(s) may delegate its power to manage the business
of the Partnership to a Board of Directors (the “
Board
”) which, subject to the limitations set forth below, shall have the authority to exercise all such powers of the Partnership and do all such lawful acts and things as may be
done by a general partner of a limited partnership under the Act and as are not by statute, by the Certificate, or by this Agreement directed or required to be exercised or done by the General Partner(s). The rights and duties of the members of
the Board may not be assigned or delegated to any person or entity.
(ii) Except as otherwise provided herein, members of the Board shall
possess and may exercise all the powers and privileges and shall have all of the obligations and duties to the Partnership and the Partners granted to or imposed on directors of a corporation organized under the laws of the State of Delaware.
(iii) The number of directors shall initially be one (4), which number may be changed from time to time by the General Partner(s). The
initial directors shall be Richard R. Dykhouse, Charles Fisher, Thomas E. Proost and Daniel J. Bollinger.
(iv) Each director shall be
appointed by the General Partner(s) and shall serve in such capacity until the earlier of his resignation, removal or replacement by the General Partner(s).
(v) No director shall be entitled to any compensation for serving as a director. No fee shall be paid to any director for attendance at
any meeting of the Board;
provided
,
however
, that the Partnership may reimburse directors for the actual reasonable costs incurred in such attendance.
(c)
Consent Required.
The affirmative vote, approval, consent or ratification of the General Partner(s) shall be required
to:
(i) alter the primary purposes of the Partnership as set forth in Section 2;
(ii) issue partnership interests in the Partnership to any person or admit any person as a Partner;
(iii) do any act in contravention of this Agreement or any resolution of the Partners, or cause the Partnership to engage in any business not
authorized by the Certificate or the terms of this Agreement or that would make it impossible to carry on the usual course of business of the Partnership;
-3-
(iv) enter into or amend any agreement which provides for the management of the business or
affairs of the Partnership by a person other than the General Partner(s);
(v) change or reorganize the Partnership into any other legal
form;
(vi) amend this Agreement;
(vii) approve a merger or consolidation with another entity;
(viii) sell all or substantially all of the assets of the Partnership;
(ix) change the status of the Partnership from one in which management is vested in the General Partner(s) to one in which management is
vested in any other person or entity, other than as may be delegated to the Board and the officers hereunder;
(x) possess any Partnership
property or assign the rights of the Partnership in specific Partnership property for other than a Partnership purpose;
(xi) operate the
Partnership in such a manner that the Partnership becomes an “investment company” for purposes of the Investment Company Act of 1940;
(xii) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a
director or officer;
(xiii) settle any litigation or arbitration with any third party, any Partner, or any affiliate of any Partner,
except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed Five Million Dollars ($5,000,000);
(xiv) materially change any of the tax reporting positions or elections of the Partnership;
(xv) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Partnership’s total budget (as approved by the General Partner(s)) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(xvi) make or incur any secured or unsecured indebtedness which individually or in the aggregate exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Partnership (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Partnership or any Intercompany Indebtedness or (iv) indebtedness
necessary to finance a transaction or purchase approved by the General Partner(s).
-4-
(d)
Board of Director Meetings
.
(i)
Regular Meetings.
Regular meetings of the Board may be held without notice at such time and at such place as shall from
time to time be determined by the Board, but not less often than annually.
(ii)
Special Meetings.
Special meetings of
the Board may be called by the president or any member of the Board on twenty-four (24) hours’ notice to each director; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of
Partners holding a majority of the partnership interests held by all Partners. Notice of a special meeting may be given by facsimile.
(iii)
Telephonic Meetings.
Members of the Board may participate in any regular or special meeting of the Board, by means of
conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 4(d)(iii) will constitute presence in person at such
meeting.
(iv)
Quorum.
Subject to the provisions of Section 4(c), at all meetings of the Board, a majority of the directors
shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by statute, the
Certificate or this Agreement. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of such adjournment shall be given to
any director not present at such meeting.
(v)
Action Without Meeting.
Unless otherwise restricted by the Certificate or
this Agreement, any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing and such written consent is filed with the minutes of proceedings of the
Board.
(e)
Board’s Duty of Care.
The Board’s duty of care in the discharge of its duties to the Partnership and
the Partners is limited to discharging its duties pursuant to this Agreement in good faith, with the care a corporate director of like position would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Partnership. In discharging its duties, the Board shall not be liable to the Partnership or to any Partner for any mistake or error in judgment or for any act or omission believed in good faith to be within the scope of
authority conferred by this Agreement or approved by the General Partner(s).
SECTION 5.
Officers
.
(a)
Officers.
The officers shall be a President, a Treasurer and a Secretary, and such other additional officers, including a
Chairman of the Board, Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board, the General Partner(s) or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior
officers of the Partnership are hereby removed and the officers of the Partnership shall be as set forth on
Schedule A
hereto (as such Exhibit may be amended by the written consent of the General Partner(s)).
-5-
(b)
Election and Term.
The President, Treasurer and Secretary shall be elected
by and shall hold office at the pleasure of the Board or the General Partner(s). The Board, the General Partner(s) or the President may elect such other officers and agents as it shall deem desirable, who shall hold office at the pleasure of
the Board, the General Partner(s) or the President, and who shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board, the General Partner(s) or the President.
(c)
Removal.
Any officer may be removed by the affirmative vote of the General Partner(s) or the affirmative vote of at
least a majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the President, the Treasurer or the Secretary may be removed by the President, with or without cause, for any
reason or for no reason.
(d)
Duties and Authority of Officers
.
(i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the
chief operating officer of the Partnership; shall preside at all meetings of the Partners and directors; shall have general supervision and active management of the business and finances of the Partnership; shall see that all orders and resolutions
of the Board or the General Partner(s) are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Board or the General Partner(s)
to the contrary, the President shall have the power to vote all securities held by the Partnership and to issue proxies therefor. In the absence or disability of the President, any Chairman (if any) or, if there is no Chairman, the most senior
available officer appointed by the Board or the General Partner(s) shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject to all restrictions imposed
upon him.
(ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be assigned to him or
her and shall exercise such powers as may be granted to him or her by the General Partner(s), the Board or by the President of the Partnership. In the absence of direction by the Board, the General Partner(s) or the President to the contrary,
any Senior Vice President shall have the power to vote all securities held by the Partnership and to issue proxies therefor.
(iii)
The
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Partners and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Partnership
or such other place as the Board may direct, a book of minutes of all meetings and actions of Directors and Partners. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at directors’ meetings, the number of units present or represented at Partners’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from
time to time by the General Partner(s) or the Board.
(iv)
The Treasurer.
The Treasurer shall have custody of the
Partnership funds and securities and shall keep or cause to be kept full and accurate accounts of
-6-
receipts and disbursements in books of the Partnership to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Partnership in the name and to the credit of
the Partnership in depositories designated by the General Partner(s) or the Board; and shall disburse the funds of the Partnership as may be ordered by the General Partner(s) or the Board.
SECTION 6.
Partners
.
(a) The Partners of the Partnership shall be set forth on
Schedule B
hereto. Other persons or entities may be admitted as Partners
from time to time pursuant to the provisions of this Agreement.
(b) No limited partner shall be liable for the debts, liabilities and
obligations of the Partnership, including any debts, liabilities and obligations under a judgment, decree or order of a court.
(c)
Neither a Partner nor any of its affiliates, partners, members, directors, managers, officers or employees shall be expressly or impliedly restricted or prohibited by virtue of this Agreement or the relationships created hereby from engaging in
other activities or business ventures of any kind or character whatsoever. Except as otherwise agreed in writing, each Partner and its affiliates, partners, members, directors, managers, officers and employees shall have the right to conduct,
or to possess a direct or indirect ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Partnership.
SECTION 7.
Distributions.
The Partnership may from time to time distribute to the Partners such amounts in cash and other
assets as shall be determined by the General Partner(s). Each such distribution, other than liquidating distributions, shall be divided among the Partners in accordance with their number of partnership units (as set forth in
Schedule
B
). Liquidating distributions shall be divided among the Partners in accordance with their positive capital account balances (capital accounts shall be maintained in accordance with Treasury Regulation § 1.704-1(b)(2)(iv)), and such
liquidating distributions shall be made by the end of the Partnership’s taxable year in which the Partnership is liquidated or, if later, within ninety (90) days after the date of such liquidation.
SECTION 8.
Allocations
.
(a) Subject to Section 8(b), the profits and losses of the Partnership shall be allocated to the Partners in accordance with their number of
partnership units (as set forth in
Schedule B
).
(b) All allocations of Partnership income, gain, loss, deductions, and other items
shall be made in accordance with the applicable requirements of Section 704 of the Internal Revenue Code and the Treasury Regulations thereunder, including without limitation the requirements necessary to satisfy the alternate test for economic
effect under Treasury Regulations Section 1.704-1(b)(2)(ii)(
d
). Accordingly, (i) an allocation shall be made only to the extent it does not cause or increase a deficit balance in a Partner’s capital account (in excess of any limited
dollar amount of such deficit balance that such Partner is obligated or deemed obligated to restore) as of the end of the Partnership’s taxable year to which such allocation relates (in determining the extent to which this clause (i) is
satisfied, such Partner’s capital account shall be reduced for the
-7-
items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), and (
6
) and otherwise adjusted as provided in the Regulations related thereto), and (ii)
a Partner who unexpectedly receives an adjustment, allocation, or distribution described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(
d
)(
4
), (
5
), or (
6
) shall be allocated items of income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross income, and gain for such year) in an amount and manner sufficient to eliminate such deficit balance as quickly as possible. The limitations and allocations described in the
preceding sentence (the “
Regulatory Allocations
”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Partners that to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of other items of Partnership income, gain, loss, or deductions. Therefore, notwithstanding any other provisions of this Section 8 (other than the Regulatory
Allocations), the General Partner(s) shall make such offsetting special allocations of Partnership income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, a Partner’s
capital account balance is, to the extent possible, equal to the capital account balance such Partner would have had if the Regulatory Allocations were not part of this agreement and all Partnership items were allocated pursuant to Section 8(a).
SECTION 9.
Dissolution; Winding Up
.
(a) The Partnership shall be dissolved upon (i) the adoption of a plan of dissolution by the General Partner(s) or (ii) the occurrence of any
event required to cause the dissolution of the Partnership under the Act.
(b) Any dissolution of the Partnership shall be effective as of
the date on which the event occurs giving rise to such dissolution, but the Partnership shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act.
(c) Upon dissolution of the Partnership, the Partnership shall continue solely for the purposes of winding up its business and affairs as soon
as reasonably practicable. Promptly after the dissolution of the Partnership, the General Partner(s) shall immediately commence to wind up the affairs of the Partnership in accordance with the provisions of this Agreement and the Act. In
winding up the business and affairs of the Partnership, the General Partner(s) may take any and all actions that it determines in its sole discretion to be in the best interests of the Partners, including, but not limited to, any actions relating to
(i) causing written notice by registered or certified mail of the Partnership’s intention to dissolve to be mailed to each known creditor of and claimant against the Partnership, (ii) the payment, settlement or compromise of existing claims
against the Partnership, (iii) the making of reasonable provisions for payment of contingent claims against the Partnership and (iv) the sale or disposition of the properties and assets of the Partnership. It is expressly understood and agreed
that a reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the satisfaction of claims against the Partnership so as to enable the General Partner(s) to minimize the losses that may result from a
liquidation.
SECTION 10.
Transfer.
No Partner shall transfer (whether by sale, assignment, gift, pledge,
hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its
-8-
partnership interest in the Partnership to any other person or entity without the prior written consent of each of the other Partners;
provided
,
however
, that this Section 10 shall
not restrict the ability of any Partner to transfer (at any time) all or a portion of its partnership interest in the Partnership to another Partner or its affiliates. Upon the transfer of a Partner’s partnership interest, the General
Partner(s) shall provide notice of such transfer to each of the other Partners and shall amend
Schedule A
hereto to reflect the transfer.
SECTION 11.
Admission of Additional Partners.
The admission of additional partners to the Partnership shall be accomplished
by the amendment of this Agreement.
SECTION 12.
Tax Matters.
As of the date of this Agreement, the Partnership is a disregarded
entity for U.S. federal income tax purposes. So long as the Partnership is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Partnership be disregarded as an entity separate
from its owner and its activities be treated as a division of such owner. In the event that the Partnership has two or more partners for U.S. federal income tax purposes, it is intended that (i) the Partnership shall be treated as a partnership
for U.S. federal income tax purposes, and the Partners shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 13.
Exculpation and Indemnification.
(a) Neither the Partners, the directors, their affiliates, nor any person who at any time shall serve, or shall have served, as a director,
officer, employee or other agent of any Partner or any such affiliate and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Partnership (a “
Specified Agent
”) shall be liable, in damages or
otherwise, to the Partnership or to any Partner for, and neither the Partnership nor any Partner shall take any action against such Partners, their affiliates or any Specified Agent, in respect of any loss which arises out of any acts or omissions
performed or omitted by it pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Partnership, if such Partner, such affiliate, or such Specified Agent, as applicable, in good faith, determined that such course
of conduct was in the best interests of the Partnership. Each Partner shall look solely to the assets of the Partnership for return of his, her or its investment, and if the property of the Partnership remaining after the discharge of the debts
and liabilities of the Partnership is insufficient to return such investment, each Partner shall have no recourse against the Partnership, the other Partners or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Partner of any fiduciary duty or duty of fair dealing to the other Partners that it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or proceeding to which a Partner, any of such Partner’s affiliates, or
any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person or entity is or was engaged in activities on behalf of the Partnership, including without limitation any action or proceeding brought
under the Securities Act of 1933, as amended, against a Partner, any of such Partner’s affiliates, or any Specified Agent relating to the Partnership, the Partnership shall indemnify and hold harmless the Partners, any such affiliates, and any
such Specified Agents against losses,
-9-
damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Partners, any of their affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any Partner, any of such
Partner’s affiliates or any Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Partner, such affiliate or such Specified Agent, as applicable, shall not
constitute bad faith, willful misconduct, or fraud on the part of such Partner, affiliate or Specified Agent.
(c) The termination of any
claim, action, suit or proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Partner, such Partner’s affiliate or any Specified Agent constituted bad faith, willful misconduct
or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable only out of the assets of the
Partnership and not from the Partners.
SECTION 14.
Miscellaneous
.
(a) If the General Partner(s), the Board or any officer of the Partnership executes a written consent or approval or otherwise takes an action
on behalf of the Partnership prior to such person or entity’s appointment by or as set forth in this Agreement, then such consent, approval or action shall be effective and binding on the Partnership so long as the effective date or time of
such consent, approval or action is after the date or time on which such person has been appointed in the manner set forth in this Agreement.
(b) A Partner’s partnership interest may be evidenced by a certificate of partnership interest in such form as the General Partner(s) may
approve.
(c) The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set forth
herein may be waived, only by a written instrument executed by each Partner. No failure or delay on the part of any Partner in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(d) This Agreement shall be binding upon and inure to the benefit of the Partners and their respective successors and assigns.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts
of law principles that would require the application of the laws of any other jurisdiction.
(f) In the event that any provision contained
in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(g) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-10-
IN WITNESS WHEREOF, the Partners have executed this Agreement, effective as of the date first written above.
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INSIGHT COMMUNICATIONS COMPANY, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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ICI HOLDINGS, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[
Signature Page to LP Agreement of Insight Midwest, L.P.
]
SCHEDULE A
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Name
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Title
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Partnership immediately prior to the date hereof with
the titles of senior vice president or below shall remain as officers of the Partnership in such capacities.
SCHEDULE B
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Partner Name
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Number and Type of Units
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Insight Communications Company, L.P.
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99.8 general partner
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ICI Holdings, LLC
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0.2 limited partner
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Exhibit 3.357
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT PHONE OF INDIANA, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY-EIGHTH DAY OF MARCH, A.D. 2001, AT 1
O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “AT&T BROADBAND PHONE OF INDIANA, LLC” TO
“COMCAST PHONE OF INDIANA, LLC”, FILED THE NINETEENTH DAY OF NOVEMBER, A.D. 2002, AT 8:30 O’CLOCK A.M.
CERTIFICATE
OF CORRECTION, CHANGING ITS NAME FROM “COMCAST PHONE OF INDIANA, LLC” TO “AT&T BROADBAND PHONE OF INDIANA, LLC”, FILED THE TWENTY-SECOND DAY OF JANUARY, A.D. 2003, AT 3 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “AT&T BROADBAND PHONE OF INDIANA, LLC” TO “INSIGHT PHONE OF INDIANA,
LLC”, FILED THE TWENTY-NINTH DAY OF NOVEMBER, A.D. 2004, AT 1:01 O’CLOCK P.M.
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
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3374242 8100H
SR#
20165696479
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Authentication: 202954294
Date: 09-08-16
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You may verify
this certificate online at corp.delaware.gov/authver.shtml
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Delaware
The First State
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Page
2
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CERTIFICATE OF AMENDMENT, FILED THE EIGHTH DAY OF FEBRUARY, A.D. 2005, AT 5:05
O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED LIABILITY COMPANY, “INSIGHT PHONE OF INDIANA, LLC”.
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
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3374242 8100H
SR#
20165696479
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Authentication: 202954294
Date: 09-08-16
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You may verify this certificate online at corp.delaware.gov/authver.shtml
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:55 PM 03/28/2001
010153196 – 3374242
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CERTIFICATE OF FORMATION
OF
AT&T Broadband Phone of
Indiana, LLC
This Certificate of Formation of AT&T Broadband Phone of Indiana, LLC (the “Company”), dated March 28, 2001 is
being duly executed and filed by Steven Garfinkel, as an authorized person, to form a limited liability company under the Delaware Limited Liability Act (6
Del
. C. §18-201,
et seq
.).
FIRST. The name of the limited liability company is AT&T Broadband Phone of Indiana, LLC.
SECOND. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801.
THIRD. The name and address of the
registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
FOURTH. This Certificate of Formation shall be effective on the date of filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of AT&T Broadband Phone of Indiana, LLC this 28
th
day of March, 2001.
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By:
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/s/ Steven
Garfinkel
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Steven Garfinkel
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Authorized Person
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:30 AM 11/19/2002
020710654 – 3374242
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CERTIFICATE OF AMENDMENT
OF
AT&T Broadband Phone of
Indiana, LLC
1. The name of the limited liability company is AT&T Broadband Phone of Indiana, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended to change the name and registered agent and office as
follows:
1. The name of the limited liability company is Comcast Phone of Indiana, LLC
2. The registered office of the limited liability company in the state of Delaware is 1201 North Market Street, #1405, in the City of
Wilmington, County of New Castle.
The registered agent of the limited liability company is Comcast Capital Corporation, the business address of that is
identical to the aforementioned registered office.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
AT&T Broadband Phone of Indiana, LLC this 18th day of November, 2002.
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By:
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/s/ William E. Dordelman
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William E. Dordelman, Vice President/ Authorized Person
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CORRECTED CERTIFICATE OF AMENDMENT OF LIMITED LIABILITY COMPANY
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1.
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The name of the limited liability company is Comcast Phone of Indiana, LLC.
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2.
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A certificate of Amendment was filed by the Secretary of State of Delaware on November 19, 2002 that requires correction as permitted by Section 18-211 of the Delaware Limited Liability Company Act.
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3.
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The inaccuracy or defect of the Certificate to be corrected is as follows: The name of the Limited Liability Company was inadvertently changed in the filing of the Certificate of Amendment.
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4.
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The Certificate of Amendment is hereby corrected to read in its entirety as follows:
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CERTIFICATE OF AMENDMENT
OF
AT&T Broadband Phone of Indiana, LLC.
Article 2 of the Certificate of Formation is amended to read as follows:
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2.
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The registered office of the limited liability company in the state of Delaware is 1201 North Market Street, #1405, in the City of Wilmington, County of New Castle.
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The registered agent of the limited liability company is Comcast Capital Corporation, the business address of that is identical to the
aforementioned registered office.
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By:
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/s/ William E. Dordelman
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Authorized Person
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William E. Dordelman
Authorized
Person
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:00 PM 01/22/2003
030045846 – 3374242
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TOTAL P.03
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
AT&T BROADBAND PHONE OF INDIANA, LLC
It is hereby certified that:
1. The name of the limited
liability company is AT&T Broadband Phone of Indiana, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended by
striking out Article FIRST thereof and substituting in lieu of said Article FIRST the following new Article FIRST:
“FIRST: The name of the limited
liability company is Insight Phone of Indiana, LLC.”
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment to the
Certificate of Formation of AT&T Broadband Phone of Indiana, LLC this 29th day of November, 2004.
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AT&T Broadband Phone of Indiana, LLC
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By:
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/s/ Arthur R. Block
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Arthur R. Block, Senior Vice President
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:01 PM 11/29/2004
FILED 01:01 PM 11/29/2004
SRV 040852980 – 3374242 FILE
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State of Delaware - Division of Corporations
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FAX
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DOCUMENT FILING SHEET
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Priority 1
(One hr)
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Priority 2
(Two Hr.)
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Priority 3
(Same Day)
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Priority 4
(24 Hour)
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Priority 5
(Must Approval)
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Priority 6
(Reg. Approval)
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Priority 7
(Reg. Work)
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DATE SUBMITTED
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2/8/2005
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REQUESTOR NAME
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The Corporation Trust Company
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FILE DATE
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2/8/2005
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ADDRESS
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Wilmington/
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FILE TIME
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17:05
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ATTN.
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DAN MURPHY
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PHONE
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866-261-9756
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NAME of COMPANY/ENTITY
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INSIGHT PHONE OF INDIANA, LLC
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050104056
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3374242
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SRV NUMBER
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION NO.
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TYPE OF DOCUMENT
AMENDMENT (COA)
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DOCUMENT CODE
18-202
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CHANGE of NAME
CHANGE of AGENT/OFFICE
XXXX
CHANGE OF STOCK
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TO CT
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CORPORATIONS
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FRANCHISE
TAX YEAR
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$
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FILING FEE TAX
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$
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RECEIVING & INDEXING
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$
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CERTIFIED
COPIES NO.
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$
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SPECIAL SERVICES
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$
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KENT COUNTY RECORDER
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$
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NEW CASTLE COUNTY RECORDER
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$
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SUSSEX COUNTY RECORDER
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$
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TOTAL
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$
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METHOD of RETURN
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MESSENGER/PICKUP
FED. EXPRESS Acct.#
REGULAR MAIL
FAX No.
OTHER
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SUBMITTED TO HOLD DATE
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COMMMENTS/FILING INSTRUCTIONS
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PLEASE SUSPEND TO CUSTOMER SERVICE – AGENT NAME IS INCORRECT IN ARTICLE 2
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SODDFS5 04-01-03
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CREDIT CARD CHARGES
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You have my authorization to charge my credit card for this service:
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-
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-
Exp. Date
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Signature
Printed Name
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AGENT USE ONLY
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INSTRUCTIONS
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1.
2.
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Fully shade in the required Priority square using a dark pencil or marker, staying within the square.
Each request must be submitted as a separate item, with its own Filing sheet as the FIRST
PAGE.
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TO CT – FROM COMCAST CAPITAL CORP (9237367)
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*1098269701
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FROM CORPORATION TRUST WILM. TEAM #2
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(THU) 2.10’ 05 10:35/ST. 10:34/NO. 4863796149 P 2
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STATE OF DELAWAE
CERTIFICATE OF AMENDMENT
1. The name of the limited liability company is
Insight Phone of Indiana, LLC
.
2. The Certificate of Formation of the limited liability company is hereby amended as follows: Strike out the statement relating to the
limited liability company’s registered office and registered agent and substitute in lieu of the following statement:
“The address of the
registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, New Castle County, Wilmington, DE 19801.”
IN WITNESS WHEREOF,
the undersigned has executed this
Certificate of Amendment on the
3
rd
day of
February
, A.D.
2005
.
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/s/ Elliot Brecher
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Senior VP and General Counsel
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DE084 - 2/12/2002 C T System Online
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:37 PM 02/08/2005
FILED 05:05 PM 02/08/2005
SRV 050104056 – 3374242 FILE
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Exhibit 3.358
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT PHONE OF
INDIANA, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Communications Midwest, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Insight Phone of Indiana, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Phone of Indiana, LLC. The business of the Company shall be conducted under
such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with
respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or
under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the
President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons
may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue
of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of
the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures
of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without
dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT PHONE OF INDIANA, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INSIGHT COMMUNICATIONS MIDWEST, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Phone of Indiana, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Insight Communications Midwest, LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.359
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT PHONE OF KENTUCKY, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY-EIGHTH DAY OF MARCH, A.D. 2001, AT 1 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “AT&T BROADBAND PHONE OF KENTUCKY, LLC” TO “COMCAST PHONE OF KENTUCKY,
LLC”, FILED THE NINETEENTH DAY OF NOVEMBER, A.D. 2002, AT 8:30 O’CLOCK A.M.
CERTIFICATE OF CORRECTION, CHANGING ITS NAME
FROM “COMCAST PHONE OF KENTUCKY, LLC” TO “AT&T BROADBAND PHONE OF KENTUCKY, LLC”, FILED THE TWENTY-SECOND DAY OF JANUARY, A.D. 2003, AT 3 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “AT&T BROADBAND PHONE OF KENTUCKY, LLC” TO “INSIGHT PHONE OF KENTUCKY,
LLC”, FILED THE TWENTY-NINTH DAY OF NOVEMBER, A.D. 2004, AT 1:01 O’CLOCK P.M.
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
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3374234 8100H
SR#
20165696576
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Authentication: 202954309
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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Delaware
The First State
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Page
2
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CERTIFICATE OF AMENDMENT, FILED THE EIGHTH DAY OF FEBRUARY, A.D. 2005, AT 5:07
O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED LIABILITY COMPANY, “INSIGHT PHONE OF KENTUCKY, LLC”.
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
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3374234 8100H
SR#
20165696576
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Authentication: 202954309
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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STATE OF DELAWARE
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SECRETARY OF STATE
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DIVISION OF CORPORATIONS
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FILED 04:56 PM 03/28/2001
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010153174 – 3374234
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CERTIFICATE OF FORMATION
OF
AT&T Broadband Phone of
Kentucky, LLC
This Certificate of Formation of AT&T Broadband Phone of Kentucky, LLC (the “Company”), dated March 28, 2001
is being duly executed and filed by Steven Garfinkel, as an authorized person, to form a limited liability company under the Delaware Limited Liability Act (6
Del
. C. §18-201,
et seq
.).
FIRST. The name of the limited liability company is AT&T Broadband Phone of Kentucky, LLC.
SECOND. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801.
THIRD. The name and address of the
registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
FOURTH. This Certificate of Formation shall be effective on the date of filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of AT&T Broadband Phone of Kentucky, LLC this 28
th
day of March, 2001.
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By:
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/s/ Steven
Garfinkel
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Steven Garfinkel
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Authorized Person
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CERTIFICATE OF AMENDMENT
OF
AT&T Broadband Phone of
Kentucky, LLC
1. The name of the limited liability company is AT&T Broadband Phone of Kentucky, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended to change the name and registered agent and office as
follows:
1. The name of the limited liability company is Comcast Phone of Kentucky, LLC
2. The registered office of the limited liability company in the state of Delaware is 1201 North Market Street, #1405, in the City of
Wilmington, County of New Castle.
The registered agent of the limited liability company is Comcast Capital Corporation, the business address of that is
identical to the aforementioned registered office.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
AT&T Broadband Phone of Kentucky, LLC this 18th day of November, 2002.
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By:
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/s/ William E. Dordelman
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William E. Dordelman, Vice President/
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Authorized Person
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STATE OF DELAWARE
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SECRETARY OF STATE
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DIVISION OF CORPORATIONS
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FILED 08:30 AM 11/19/2002
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020710663 – 3374234
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STATE OF DELAWARE
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SECRETARY OF STATE
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DIVISION OF CORPORATIONS
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FILED 03:00 PM 01/22/2003
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030045842 – 3374234
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CORRECTED CERTIFICATE OF AMENDMENT OF LIMITED LIABILITY COMPANY
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1.
|
The name of the limited liability company is Comcast Phone of Kentucky, LLC.
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2.
|
A certificate of Amendment was filed by the Secretary of State of Delaware on November 19, 2002 that requires correction as permitted by Section 18-211 of the Delaware Limited Liability Company Act.
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3.
|
The inaccuracy or defect of the Certificate to be corrected is as follows: The name of the Limited Liability Company was inadvertently changed in the filing of the Certificate of Amendment.
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4.
|
The Certificate of Amendment is hereby corrected to read in its entirety as follows:
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CERTIFICATE OF AMENDMENT
OF
AT&T Broadband Phone of Kentucky, LLC
Article 2 of the Certificate of Formation is amended to read as follows:
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2.
|
The registered office of the limited liability company in the state of Delaware is 1201 North Market Street, #1405, in the City of Wilmington, County of New Castle.
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The registered agent of the limited liability company is Comcast Capital Corporation, the business address of that is identical to the
aforementioned registered office.
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By:
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/s/ William E. Dordelman
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Authorized Person
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William E. Dordelman
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Authorized Person
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
AT&T BROADBAND PHONE OF KENTUCKY, LLC
It is hereby certified that:
1. The name of the limited
liability company is AT&T Broadband Phone of Kentucky, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended by
striking out Article FIRST thereof and substituting in lieu of said Article FIRST the following new Article FIRST:
“FIRST: The name of the limited
liability company is Insight Phone of Kentucky, LLC.”
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment to the
Certificate of Formation of AT&T Broadband Phone of Kentucky, LLC this 29th day of November, 2004.
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AT&T Broadband Phone of Kentucky, LLC
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By:
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/s/ Arthur R. Block
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Arthur R. Block, Senior Vice President
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Authorized Person
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 01:01 PM 11/29/2004
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FILED 01:01 PM 11/29/2004
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SRV 040852985 – 3374234 FILE
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State of Delaware - Division of Corporations
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FAX
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DOCUMENT FILING SHEET
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Priority 1
(One hr)
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Priority 2
(Two Hr.)
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Priority 3 (Same Day)
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Priority 4 (24 Hour)
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Priority 5 (Must Approval)
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Priority 6 (Reg. Approval)
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Priority 7 (Reg. Work)
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DATE SUBMITTED
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2/8/2005
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REQUESTOR NAME
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The Corporation Trust Company
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FILE DATE
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2/8/2005
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ADDRESS
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Wilmington/
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FILE TIME
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17:07
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ATTN.
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DAN MURPHY
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PHONE
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866-261-9756
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NAME of COMPANY/ENTITY
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INSIGHT PHONE OF KENTUCKY, LLC
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050104063
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3374234
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SRV NUMBER
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION NO.
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TYPE OF DOCUMENT
AMENDMENT (COA)
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DOCUMENT CODE
18-202
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CHANGE of NAME
CHANGE of AGENT/OFFICE
XXXX
CHANGE OF STOCK
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TO CT
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CORPORATIONS
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FRANCHISE
TAX YEAR
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$
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FILING FEE TAX
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$
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RECEIVING & INDEXING
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$
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CERTIFIED
COPIES NO.
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$
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SPECIAL SERVICES
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$
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KENT COUNTY RECORDER
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$
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NEW CASTLE COUNTY RECORDER
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$
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SUSSEX COUNTY RECORDER
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$
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TOTAL
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$
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METHOD of RETURN
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MESSENGER/PICKUP
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FED. EXPRESS Acct.#
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REGULAR MAIL
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FAX
No.
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OTHER
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SUBMITTED TO HOLD DATE
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COMMENTS/FILING INSTRUCTIONS
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PLEASE - SUSPEND TO CUSTOMER SERVICE - AGENT NAME IS INCORRECT IN ARTICLE 2
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SODDFS5 04-01-03
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CREDIT CARD CHARGES
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You have my
authorization to charge my credit card for this service:
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Exp. Date
Signature
Printed Name
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AGENT USE ONLY
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INSTRUCTIONS
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1.
2.
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Fully shade in the required Priority square using a dark pencil or marker, staying within the square.
Each request must be submitted as a separate item, with its own Filing sheet is the FIRST
PAGE.
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TO CT – FROM COMCAST CAPITAL CORP (9237367)
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*1098269702
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FROM CORPORATION TRUST WILM. TEAM #2
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(THU) 2. 10’05 10:35/ST. 10:34/NO. 4863796149 P 3
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STATE OF DELAWAE
CERTIFICATE OF AMENDMENT
1. The name of the limited liability company is
Insight Phone of Kentucky, LLC
.
2. The Certificate of Formation of the limited liability company is hereby amended as follows: Strike out the statement relating to the
limited liability company’s registered office and registered agent and substitute in lieu of the following statement:
“The address of the
registered office and the name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, New Castle County, Wilmington, DE 19801.”
IN WITNESS WHEREOF
, the undersigned has executed this
Certificate of Amendment on the
3
rd
day of
February
, A.D.
2005
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/s/ Elliot Brecher
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Senior VP and General Counsel
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DE084 - 2/12/2002 C T System Online
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:37 PM 02/08/2005
FILED 05:07 PM 02/08/2005
SRV 050104063 – 3374234 FILE
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Exhibit 3.360
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT PHONE OF
KENTUCKY, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Kentucky Partners II, L.P., a Delaware limited partnership (the “
Member
”), as the sole member of Insight Phone of Kentucky, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Phone of Kentucky, LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
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(a)
Management by Manager
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i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members
shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT PHONE OF KENTUCKY, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INSIGHT KENTUCKY PARTNERS II, L.P.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Phone of Kentucky, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Insight Kentucky Partners II, L.P.
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.361
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INSIGHT PHONE OF OHIO, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE
FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE THIRTEENTH DAY OF JULY, A.D. 2004, AT 1:20
O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE
AFORESAID LIMITED LIABILITY COMPANY, “INSIGHT PHONE OF OHIO, LLC”.
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/s/ Jeffrey W.
Bullock
Jeffrey W. Bullock, Secretary of State
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3828234 8100H
SR#
20165696626
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Authentication: 202954321
Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:20 PM 07/13/2004
FILED 01:20 PM 07/13/2004
SRV 040512400 – 3828234 FILE
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CERTIFICATE OF FORMATION
OF
INSIGHT PHONE OF OHIO, LLC
The name of the limited liability company is Insight Phone of Ohio, LLC (the
“LLC”).
The address of the registered office of the LLC in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, 19801.
The name and address of the registered agent for service of process on
the LLC in the State of Delaware are The Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, 19801.
The name and address of the Authorized Person are INSIGHT
COMMUNICATIONS OF CENTRAL OHIO, LLC, 810 7th Avenue, New York, New York 10019.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Formation, this 12th day of July, 2004.
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INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
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By:
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/s/ ELLIOT BRECHER
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Name:
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ELLIOT BRECHER
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Title:
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SENIOR VICE PRESIDENT & GENERAL COUNSEL
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DCLIB01:1442289-1
Exhibit 3.362
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INSIGHT PHONE OF
OHIO, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Insight Communications of Centtral Ohio, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Insight Phone of Ohio, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Insight Phone of Ohio, LLC. The business of the Company shall be conducted under
such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of
the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the
Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members
shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INSIGHT PHONE OF OHIO, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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INSIGHT COMMUNICATIONS OF CENTTRAL OHIO, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Insight Phone of Ohio, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Insight Communications of Centtral Ohio, LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.363
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “INTERACTIVE CABLE SERVICES, LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY-THIRD DAY OF JULY, A.D. 1999, AT 3 O’CLOCK P.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “INSIGHT INTERACTIVE, LLC” TO “INTERACTIVE CABLE SERVICES, LLC”, FILED
THE NINTH DAY OF JULY, A.D. 2004, AT 3:10 O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES
ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “INTERACTIVE CABLE SERVICES, LLC”.
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/s/ Jeffrey
W. Bullock
Jeffrey W. Bullock, Secretary of State
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3074090 8100H
SR#
20165696673
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Authentication: 202954340
Date: 09-08-16
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You may verify this certificate online at corp.delaware.gov/authver.shtml
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07/23/99 15:00 DOW, LOHNES & ALBERTSON
g
302 674 8340
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NO. 857 P002
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CERTIFICATE OF FORMATION
OF
INSIGHT INTERACTIVE, LLC
The name of the limited liability company is Insight Interactive, LLC (the
“LLC”).
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2.
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REGISTERED OFFICE AND AGENT
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The address of the registered office of the LLC in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle. The registered agent in charge thereof is The Corporation Trust Company.
The name and address of the Authorized Person are Sarah J. Welch,
1200 New Hampshire Avenue, NW, Washington, DC 20036-6802. The authority of the Authorized Person shall terminate upon filing of this Certificate of Formation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation, this 23
rd
day of July 23, 1999.
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AUTHORIZED PERSON
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By:
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/s/ Sarah J. Welch
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Sarah J. Welch
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Authorized Person
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:00 PM 07/23/1999
991305380 – 3074090
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State of Delaware - Division of Corporations
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Fax
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Document Filing
Sheet
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PART I OF II
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Priority 1
(One Hr)
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Priority 2
(Two Hr)
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Priority 3
(Same Day)
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Priority 4
(24 Hr)
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Priority 5
(Must Approval)
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Priority 6
(Reg. Approval)
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Priority 7
(Reg. Work)
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DATE SUBMITTED
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8-9-04
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REQUESTOR NAME
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The Corporation Trust Company
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FILE DATE
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8-9-04
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ADDRESS
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WILM/ Cynthia Pierce/Wilmin /
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FILE TIME
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1510
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ATTN.
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Cynthia Pierce
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PHONE
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866-809-1134
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NAME of COMPANY/ENTITY
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INSIGHT INTERACTIVE, LLC C/N/T INTERACTIVE CABLE SERVICES, LLC
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040506264
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3074090
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9000010
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SRV NUMBER
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FILE NUMBER
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FILER’S NUMBER
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RESERVATION NO.
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TYPE OF DOCUMENT
AMENDMENT
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DOCUMENT CODE
18-202
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CHANGE of NAME
X
CHANGE of AGENT/OFFICE
CHANGE OF STOCK
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CORPORATIONS
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FRANCHISE
TAX YEAR
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$
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FILING FEE TAX
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$
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RECEIVING & INDEXING
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$
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CERTIFIED COPIES NO.
1
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$
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SPECIAL SERVICES
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$
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KENT COUNTY RECORDER
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$
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NEW CASTLE COUNTY RECORDER
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$
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SUSSEX COUNTY RECORDER
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$
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TOTAL
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$
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METHOD of RETURN
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MESSENGER/PICKUP
FED. EXPRESS Acct.#
REGULAR MAIL
FAX No.
OTHER
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COMMMENTS/FILING INSTRUCTIONS
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CREDIT CARD CHARGES
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You have my authorization to charge my credit card for this service:
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-
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Exp. Date
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Signature
Printed Name
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XX
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AGENT USE ONLY
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INSTRUCTIONS
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614505450
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1. Full shade
in the required Priority square using a dark pencil or marker, staying within the square.
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2. Each request must be submitted as a separate
item, with its own Filing sheet as the FIRST PAGE.
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State of Delaware
Secretary of State
Division of Corporations
Delivered 02:57 PM 07/09/2004
FILED 03:10 PM 07/09/2004
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CERTIFICATE OF AMENDMENT
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SRV 040506264 - 3074090 FILE
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OF
INSIGHT INTERACTIVE, LLC
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1. The name of the limited liability company is
Insight Interactive, LLC
.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company shall be changed from Insight Interactive, LLC to Interactive Cable Services, LLC
3. This Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
Insight Interactive, LLC
this
8
th
day of
July
,
2004
.
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/s/ Elliot Brecher
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Elliot Brecher, Senior Vice President
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Exhibit 3.364
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INTERACTIVE CABLE
SERVICES, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Interactive Cable Services, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Interactive Cable Services, LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons
may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue
of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of
the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures
of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the
Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INTERACTIVE CABLE SERVICES, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Interactive Cable Services, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.365
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State of Delaware
Secretary of State
Division of
Corporations
Delivered 11:14 AM 05/17/2016
FILED 11:14 AM 05/17/2016
SR
20163293396 – File Number 3649276
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CERTIFICATE OF FORMATION
OF
INTREPID
ACQUISITION LLC
This Certificate of Formation of Intrepid Acquisition LLC (the “Company”) is being executed by the
undersigned, an authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq.
).
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1.
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The name of the limited liability company is Intrepid Acquisition LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:32 p.m. on May 17, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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Exhibit 3.366
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
INTREPID
ACQUISITION LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among NaviSite LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Intrepid Acquisition LLC, a Delaware limited liability company (the “
Company
”), the
Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Intrepid Acquisition LLC. The business of the Company shall be conducted under
such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of
the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the
Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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INTREPID ACQUISITION LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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NAVISITE LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Intrepid Acquisition LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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NaviSite LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.367
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State of Delaware
Secretary of State
Division of
Corporations
Delivered 01:16 PM 05/13/2016
FILED 01:16 PM 05/13/2016
SR 20163188586 - File Number 2985020
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CERTIFICATE OF FORMATION
OF
NAVISITE LLC
This Certificate of Formation of NaviSite LLC (the “Company”) is being executed by the undersigned, an authorized person,
for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
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The name of the limited liability company is NaviSite LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:59 p.m. on May 13, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered
11:18 AM 05/17/2016
FILED 11:18 AM 05/17/2016
SR 20163294919 - File Number 2985020
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC CORPORATION INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 8, Section 264 of the Delaware General Corporation Law and
Title 6, 18-209 of the Delaware Limited Liability Company Act.
NaviSite LLC, a Delaware limited liability company, hereby certifies as follows:
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First:
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The name of the surviving limited liability company is NaviSite LLC, a Delaware limited liability company.
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Second:
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The name of the corporation being merged into the surviving limited liability company is Clearblue Technologies/Dallas, Inc., a Delaware corporation.
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Third:
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The agreement of merger has been approved, adopted, executed and acknowledged by each of the business entities which is to merge.
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Fourth:
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The merger shall become effective as of 11:32 p.m. on May 17, 2016.
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Fifth:
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The agreement of merger is on file at a place of business of NaviSite LLC, the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
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Sixth:
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A copy of the agreement of merger will be furnished by the surviving limited liability company, on request and without cost, to any stockholder of any domestic corporation or any person holding an interest in any other business
entity which is to merge.
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IN WITNESS WHEREOF, NaviSite LLC, the surviving limited liability company, has caused this certificate to be
signed by an authorized person, this 13th day of May, 2016.
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NAVISITE LLC
,
a Delaware
limited liability company
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By:
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/s/ David A. Christman
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David A. Christman
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Senior Vice President and Secretary
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Exhibit 3.368
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
NAVISITE LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC NewCo, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of NaviSite LLC, a Delaware limited liability company (the “
Company
”), the Company, and
Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be NaviSite LLC. The business of the Company shall be conducted under such name or
any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by
the Members acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any
position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as
amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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NAVISITE LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWC NEWCO, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of NaviSite LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC NewCo, LLC
|
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.369
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State of Delaware
Secretary of State
Division of
Corporations
Delivered 11:45 AM 05/09/2016
FILED 11:45 AM 05/09/2016
SR 20162954209 - File Number 6037247
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CERTIFICATE OF FORMATION
OF
NEW WISCONSIN PROCUREMENT LLC
This Certificate of Formation of New Wisconsin Procurement LLC (the “Company”) is being executed by the undersigned, an authorized
person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18.101,
et seq.
).
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1.
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The name of the limited liability company is New Wisconsin Procurement LLC.
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2.
|
The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:59 p.m. on May 9, 2016.
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IN
WITNESS WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 9th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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AM 57202853.2
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State of Delaware
Secretary of State
Division of
Corporations
Delivered 11:03 AM 05/17/2016
FILED 11:03 AM 05/17/2016
SR 20163293422 - File Number 6037247
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
New Wisconsin Procurement LLC, a Delaware limited liability company, hereby certifies as follows:
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First:
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The name of the surviving limited liability company is New Wisconsin Procurement LLC, a Delaware limited liability company.
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Second:
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The name of the limited liability company being merged into the surviving limited liability company is TWC Wisconsin Procurement LLC, a Delaware limited liability company.
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Third:
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The agreement of merger has been approved and executed by each of the business entities which is to merge.
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Fourth:
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The merger shall become effective as of 11:31 p.m. on May 17, 2016.
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Fifth:
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The agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
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Sixth:
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A copy of the agreement of merger will be furnished by the surviving limited liability company, on request and without cost, to any member of any domestic limited liability company which is to merge.
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IN WITNESS WHEREOF, New Wisconsin Procurement LLC, the surviving limited liability company, has caused this
certificate to be signed by an authorized person, this 13th day of May 2016.
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NEW WISCONSIN PROCUREMENT LLC
,
a Delaware limited liability company
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By:
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/s/ David A. Christman
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David A. Christman
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Authorized Person
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Exhibit 3.370
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
NEW WISCONSIN
PROCUREMENT LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company, and Wisconsin Procurement Holdco LLC, a Delaware limited liability company (each a “
Member
” and collectively, the
“
Members
”), as all of the members of New Wisconsin Procurement LLC, a Delaware limited liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH
I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company
pursuant to a Certificate of Formation filed with the Secretary of State of the State of Delaware; and
The Members desire to continue the
Company as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability
company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation
and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be New Wisconsin
Procurement LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board,
or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority
of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the
President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show
the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary
in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall
keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly
restricted or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by
written Company policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect
ownership interest in, activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members
such amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable
the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has
more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person
without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest
in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect
the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company
shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this
Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal
income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes,
and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the
Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement
controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited
liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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NEW WISCONSIN PROCUREMENT LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBERS
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TIME WARNER CABLE MIDWEST LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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WISCONSIN PROCUREMENT HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of New Wisconsin Procurement LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Midwest LLC
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99.00
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%
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Wisconsin Procurement Holdco LLC
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1.00
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%
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Total
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100.00
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%
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B-1
Exhibit 3.371
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:17 PM 02/06/2012
FILED 04:43 PM 02/06/2012
SRV 120128335 – 5105743 FILE
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CERTIFICATE OF FORMATION
OF
OCEANIC TIME WARNER
CABLE LLC
This Certificate of Formation of Oceanic Time Warner Cable LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Oceanic Time Warner Cable LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 6th day of February,
2012.
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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Exhibit 3.372
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
OCEANIC TIME WARNER
CABLE LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Oceanic Time Warner Cable LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Oceanic Time Warner Cable LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members
shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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OCEANIC TIME WARNER CABLE LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Oceanic Time Warner Cable LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.373
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State of Delaware
Secretary of State
Division of Corporations
Delivered 10:29 AM 02/11/2011
FILED 10:21 AM 02/11/2011
SRV 110144278 – 4939251 FILE
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CERTIFICATE OF FORMATION
OF
PARITY ASSETS LLC
This Certificate of Formation of Parity Assets LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Parity Assets
LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 11th day of February, 2011.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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Exhibit 3.374
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
PARITY ASSETS LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Parity Assets LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Parity Assets LLC. The business of the Company shall be conducted under such name
or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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PARITY ASSETS LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Parity Assets LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.375
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State of Delaware
Secretary of State
Division of Corporations
Delivered 12:57 PM 01/10/2013
FILED 12:48 PM 01/10/2013
SRV 130034193 – 5272752 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
BUSINESS LLC
This Certificate of Formation of Time Warner Cable Business LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Time Warner Cable Business LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 9
th
day of January, 2013.
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/s/ William C. Wesselman
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William C. Wesselman,
Authorized
Person
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Exhibit 3.376
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
BUSINESS LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Business LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Business LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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|
|
COMPANY
|
|
|
|
TIME WARNER CABLE BUSINESS LLC
|
|
|
|
|
By:
|
|
/s/ Thomas E. Proost
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|
|
|
Name:
|
|
Thomas E. Proost
|
|
|
|
Title:
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
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|
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MEMBER
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|
|
TWCIS HOLDCO LLC
|
|
|
|
|
By:
|
|
/s/ Thomas E. Proost
|
|
|
|
Name:
|
|
Thomas E. Proost
|
|
|
|
Title:
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
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|
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MANAGER
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|
|
|
Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
|
|
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|
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By:
|
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/s/ Thomas E. Proost
|
|
|
|
Name:
|
|
Thomas E. Proost
|
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|
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Title:
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
[Signature Page to LLC Agreement of Time Warner Cable Business LLC]
EXHIBIT A
OFFICERS
|
|
|
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Name
|
|
Title
|
|
|
|
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Thomas M. Rutledge
|
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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|
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John Bickham
|
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Executive Vice President, Chief Operating Officer
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|
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Phil Meeks
|
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Executive Vice President, Business Enterprise Services
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Don Detampel
|
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Executive Vice President and President, Commercial Services
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|
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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|
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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|
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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|
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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|
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|
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Paul Marchand
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Executive Vice President, Human Resources
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|
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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|
Executive Vice President, Business Planning
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|
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David Scott Weber
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Executive Vice President, Network Operations
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|
|
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Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
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|
|
|
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Thomas B. Anema
|
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Senior Vice President, Commercial Finance
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|
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Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
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|
|
|
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Rocky Boler
|
|
Senior Vice President, Customer Care
|
|
|
|
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Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
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|
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|
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Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
|
|
|
|
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Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
|
|
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Alexander Dudley
|
|
Senior Vice President, Communications
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|
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Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
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|
|
|
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Adam Falk
|
|
Senior Vice President, State Government Affairs
|
|
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|
|
Charlotte Field
|
|
Senior Vice President, Application Platform Ops
|
A-1
|
|
|
|
|
Name
|
|
Title
|
|
|
|
|
Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
|
|
|
James M. Heneghan
|
|
President, Charter Media
|
|
|
|
|
Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
|
|
|
Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
|
|
|
|
|
Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
|
|
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
|
|
|
|
Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
|
|
|
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
|
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
|
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Jodi Robinson
|
|
Senior Vice President, UX Design and Development
|
|
|
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
|
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
|
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
|
|
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Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
|
|
Alan Jones
|
|
Vice President, Tax
|
|
|
|
|
Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
TWCIS Holdco LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.377
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 10:27 AM 03/12/2012
|
|
|
|
|
|
FILED 10:23 AM 03/12/2012
|
|
|
|
|
|
SRV 120298039 – 5122296 FILE
|
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
ENTERPRISES LLC
This Certificate of Formation of Time Warner Cable Enterprises LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Time Warner Cable Enterprises LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 12th day of March,
2012.
|
|
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/s/ Riina Tohvert
|
|
Riina Tohvert,
|
|
Authorized Person
|
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 12:12 PM 09/28/2012
|
|
|
|
|
|
FILED 11:50 AM 09/28/2012
|
|
|
|
|
|
SRV 121079298 – 5122296 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is TWE GP Holdings LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:01 a.m. on September 30, 2012.
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company or any person holding an interest in
any other business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of September, 2012.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 12:13 PM 09/28/2012
|
|
|
|
|
|
FILED 12:13 PM 09/28/2012
|
|
|
|
|
|
SRV 121079382 – 5122296 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED PARTNERSHIP INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 17-211(c) of the Delaware Revised Uniform Limited Partnership Act and Title 6, 18-209 of the Delaware Limited Liability
Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited partnership being merged into the surviving limited liability company is Time Warner Entertainment Company, L.P., a Delaware limited partnership.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:01 a.m. on September 30, 2012.
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any partner of any domestic limited partnership or any person holding an interest in any
other business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of September, 2012.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 12:12 PM 09/28/2012
|
|
|
|
|
|
FILED 12:14 PM 09/28/2012
|
|
|
|
|
|
SRV 121079348 – 5122296 FILE
|
|
|
|
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is Time Warner Cable LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:02 a.m. on September 30, 2012
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company or any person holding an interest in
any other business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of September, 2012.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 12:13 PM 09/28/2012
|
|
|
|
|
|
FILED 12:15 PM 09/28/2012
|
|
|
|
|
|
SRV 121079364 – 5122296 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED PARTNERSHIP INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 17-211(c) of the Delaware Revised Uniform Limited Partnership Act and Title 6, 18-209 of the Delaware Limited Liability
Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited partnership being merged into the surviving limited liability company is Time Warner Cable San Antonio, L.P., a Delaware limited partnership.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:03 a.m. on September 30, 2012.
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any partner of any domestic limited partnership or any person holding an interest in any
other business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of September, 2012.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 12:12 PM 09/28/2012
|
|
|
|
|
|
FILED 12:16 PM 09/28/2012
|
|
|
|
|
|
SRV 121079337 – 5122296 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC CORPORATION INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 8, Section 264 of the Delaware General Corporation Law and Title 6, 18-209 of the Delaware Limited Liability Company Act
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the corporation being merged into the surviving limited liability company is Time Warner Cable Holdings Inc., a Delaware corporation.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:06 a.m. on September 30, 2012.
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any stockholder of any domestic corporation or any person holding an interest in any other
business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of September, 2012.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 12:13 PM 09/28/2012
|
|
|
|
|
|
FILED 12:17 PM 09/28/2012
|
|
|
|
|
|
SRV 121079376 – 5122296 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED PARTNERSHIP INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 17-211(c) of the Delaware Revised Uniform Limited Partnership Act and Title 6, 18-209 of the Delaware Limited Liability
Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited partnership being merged into the surviving limited liability company is Time Warner Cable of Southeastern Wisconsin, L.P., a Delaware limited partnership.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:07 a.m. on September 30, 2012.
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any partner of any domestic limited partnership or any person holding an interest in any
other business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of September, 2012.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 07:30 PM 10/29/2013
|
|
|
|
|
|
FILED 05:59 PM 10/29/2013
|
|
|
|
|
|
SRV 131248358 – 5122296 FILE
|
|
|
|
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is Time Warner NY Cable LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger has been approved and executed by each of the business entities which is to merge.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:01 a.m. on November 1, 2013.
|
|
|
|
|
Fifth:
|
|
An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company which is to merge.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of October, 2013.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC
,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
AM 17767362.4
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 07:30 PM 10/29/2013
|
|
|
|
|
|
FILED 07:30 PM 10/29/2013
|
|
|
|
|
|
SRV 131248396 – 5122296 FILE
|
|
|
|
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is Time Warner Cable Internet Holdings II LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger has been approved and executed by each of the business entities which is to merge.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:02 a.m. on November 1, 2013.
|
|
|
|
|
Fifth:
|
|
An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company which is to merge.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of October, 2013.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC
,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ Satish Adige
|
|
|
|
Satish Adige
|
|
|
|
Senior Vice President, Investments
|
AM 24569265.1
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 07:30 PM 10/29/2013
|
|
|
|
|
|
FILED 07:31 PM 10/29/2013
|
|
|
|
|
|
SRV 131248494 – 5122296 FILE
|
|
|
|
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is TWC Wireless Holdings I LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger has been approved and executed by each of the business entities which is to merge.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:03 a.m. on November 1, 2013.
|
|
|
|
|
Fifth:
|
|
An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company which is to merge.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of October, 2013.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC
,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ David A. Christman
|
|
|
|
David A. Christman
Senior Vice President,
Deputy General
Counsel, Corporate and Assistant Secretary
|
AM 17783983.4
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 07:30 PM 10/29/2013
|
|
|
|
|
|
FILED 07:32 PM 10/29/2013
|
|
|
|
|
|
SRV 131248518 – 5122296 FILE
|
|
|
|
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is TWC Wireless Holdings II LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger has been approved and executed by each of the business entities which is to merge.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:03 a.m. on November 1, 2013.
|
|
|
|
|
Fifth:
|
|
An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company which is to merge.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of October, 2013.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC
,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ David A. Christman
|
|
|
|
David A. Christman
Senior Vice President,
Deputy General
Counsel, Corporate and Assistant Secretary
|
AM 17797531.4
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 07:30 PM 10/29/2013
|
|
|
|
|
|
FILED 07:33 PM 10/29/2013
|
|
|
|
|
|
SRV 131248531 – 5122296 FILE
|
|
|
|
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the limited liability company being merged into the surviving limited liability company is TWC Wireless Holdings III LLC, a Delaware limited liability company.
|
|
|
|
|
Third:
|
|
The agreement of merger has been approved and executed by each of the business entities which is to merge.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of 12:03 a.m. on November 1, 2013.
|
|
|
|
|
Fifth:
|
|
An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company which is to merge.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 28
th
day of October, 2013.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC
,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ David A. Christman
|
|
|
|
David A. Christman
Senior Vice President,
Deputy General
Counsel, Corporate and Assistant Secretary
|
AM 17797544.4
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
|
|
|
|
|
|
Secretary of State
|
|
|
|
|
|
Division of Corporations
|
|
|
|
|
|
Delivered 11:33 AM 12/31/2013
|
|
|
|
|
|
FILED 11:22 AM 12/31/2013
|
|
|
|
|
|
SRV 131493198 – 5122296 FILE
|
STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC CORPORATION INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 8, Section 264 of the Delaware General Corporation Law and Title 6, Section 18-209 of the Delaware Limited Liability Company
Act.
|
|
|
|
|
First:
|
|
The name of the surviving limited liability company is Time Warner Cable Enterprises LLC, a Delaware limited liability company.
|
|
|
|
|
Second:
|
|
The name of the corporation being merged into the surviving limited liability company is TWEAN Holdings Inc., a Delaware corporation.
|
|
|
|
|
Third:
|
|
The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
|
|
|
|
|
Fourth:
|
|
The merger is to become effective as of December 31, 2013.
|
|
|
|
|
Fifth:
|
|
An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
|
|
|
|
|
Sixth:
|
|
A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company or any person holding an interest in
any other business entity which is to merge or consolidate.
|
IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an
authorized person, this 30
th
day of December 2013.
|
|
|
|
|
TIME WARNER CABLE ENTERPRISES LLC
,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
/s/ David A. Christman
|
|
|
|
David A. Christman
|
|
|
|
SVP & Assistant Secretary
|
America 9140397.4
Exhibit 3.378
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
ENTERPRISES LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC NewCo LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Enterprises LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Enterprises LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members
on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWC NEWCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Enterprises LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC NewCo LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.379
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (ALABAMA), LLC
This Certificate of Formation of Time Warner Cable Information Services (Alabama), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Alabama), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 8th day of January, 2004.
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Time Warner Cable Inc., Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
Senior Vice President,
Voice
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N:\Law\riina\Entities\Forms\LLC\LLC Formation - TWCIS(AL).doc
Exhibit 3.380
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES(ALABAMA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services(Alabama), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services(Alabama), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES(ALABAMA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services(Alabama), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.381
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:29 PM 02/21/2006
FILED 07:06 PM 02/21/2006
SRV 060163627 – 4113483 FILE
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CERTIFICATE OF FORMATION
OF
TWCIS(AZ), LLC
This Certificate of Formation of TWCIS(AZ), LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWCIS(AZ), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 21st day of February, 2006.
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Time Warner NY Cable LLC, Sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Assistant Secretary
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC - TWNYC.doc
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:12 PM 03/08/2006
FILED 06:51 PM 03/08/2006
SRV 060229907 – 4113483 FILE
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
TWCIS(AZ), LLC
1. The name of the limited liability company is TWCIS(AZ), LLC.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company is Time Warner Cable Information Services (Arizona), LLC.
3. This Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 8
th
day of March, 2006.
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Time Warner NY Cable LLC, sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Asst. Secretary
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N:\Law\Riina\Entities\Forms\LLC\Amend of Cert of Form.doc
Exhibit 3.382
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (ARIZONA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Arizona), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Arizona), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member; (3) do any act in contravention of this
Agreement or any resolution of the members, or cause the Company to engage in any business not authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the
Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person
other than the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (ARIZONA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Arizona), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.383
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JUL-14-2003 17:42
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CT CORPORATION SYS
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1212 894 8490 P.05
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:48 PM 07/14/2003
FILED 08:48 PM 07/14/2003
SRV 030461134 – 3681445 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (CALIFORNIA), LLC
This Certificate of Formation of Time Warner Cable Information Services (California), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (California), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Cable Inc., Managing Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President, Voice
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC.doc
Exhibit 3.384
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (CALIFORNIA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (California), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (California), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if
any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President,
and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform
such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President
to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such
other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice
given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the
Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (CALIFORNIA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (California), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.385
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State of Delaware
Secretary of State
Division of Corporations
Delivered 10:36 AM 04/03/2008
FILED 10:36 AM 04/03/2008
SRV 080389387 – 4528574 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (COLORADO), LLC
This Certificate of Formation of Time Warner Cable Information Services (Colorado), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Colorado), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 3rd day of April, 2008.
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/s/ Riina Tohvert
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Riina Tohvert, Authorized Person
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Exhibit 3.386
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (COLORADO), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Colorado), LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information
Services (Colorado), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall
continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the
Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited
liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (COLORADO), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Colorado), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.387
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JUL–14–2003 17:42
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CT CORPORATION SYS
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1212 894 8490 P.06
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:47 PM 07/14/2003
FILED 08:47 PM 07/14/2003
SRV 030461132 – 3681444 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (HAWAII), LLC
This Certificate of Formation of Time Warner Cable Information Services (Hawaii), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Hawaii), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Entertainment Company, L.P., Sole Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell, Senior Vice President, Voice, Cable Group
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC.doc
Exhibit 3.388
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (HAWAII), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Hawaii), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Hawaii), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive,
St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members
on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (HAWAII), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Hawaii), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.389
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:43 PM 01/17/2007
FILED 08:43 PM 01/17/2007
SRV 070054750 – 4286594 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (IDAHO), LLC
This Certificate of Formation of Time Warner Cable Information Services (Idaho), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Idaho), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 17th day of January, 2007.
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/s/ Riina Tohvert
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Riina Tohvert, Authorized Person
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Exhibit 3.390
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (IDAHO), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Idaho), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Idaho), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if
any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President,
and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform
such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President
to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such
other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice
given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the
Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members
on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (IDAHO), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Idaho), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Economic Interest
Percentage
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Members
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.391
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State of Delaware
Secretary of State
Division of Corporations
Delivered 10:36 AM 04/03/2008
FILED 10:36 AM 04/03/2008
SRV 080389393 – 4528571 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (ILLINOIS), LLC
This Certificate of Formation of Time Warner Cable Information Services (Illinois), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Illinois), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 3rd day of April, 2008.
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/s/ Riina Tohvert
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Riina Tohvert, Authorized Person
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Exhibit 3.392
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (ILLINOIS), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Illinois), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Illinois), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (ILLINOIS), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Illinois), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.393
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SEP-08-2004 12:19
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CT CORPORATION SYS
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1212 894 8490 P.02
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:39 PM 09/08/2004
FILED 01:39 PM 09/08/2004
SRV 040650499 – 3851939 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (INDIANA), LLC
This Certificate of Formation of Time Warner Cable Information Services (Indiana), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Indiana), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 8th day of September, 2004.
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Time Warner Entertainment Company, L.P., Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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VP & Asst. Secretary, Cable Group
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation - TWCIS.doc
Exhibit 3.394
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (INDIANA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Indiana), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Indiana), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for
service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time
by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St.
Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board,
or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority
of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the
President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy,
each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
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Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
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Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (INDIANA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Indiana), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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|
|
|
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David Scott Weber
|
|
Executive Vice President, Network Operations
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|
|
|
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Kevin D. Howard
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|
Senior Vice President, Finance, Controller, Chief Accounting Officer
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|
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|
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Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
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|
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|
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Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
|
|
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|
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Rocky Boler
|
|
Senior Vice President, Customer Care
|
|
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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|
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Thomas M. Degnan
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|
Senior Vice President, Finance and Corporate Treasurer
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|
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Alexander Dudley
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|
Senior Vice President, Communications
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Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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|
Title
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|
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Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
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James M. Heneghan
|
|
President, Charter Media
|
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|
|
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Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
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|
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|
Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
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|
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Joseph Leonard
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|
Senior Vice President, Marketing and Creative Strategy
|
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James F. McGann, Jr.
|
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Senior Vice President, Charter Business
|
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|
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Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
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|
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Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
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Donald Poulter
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Senior Vice President, Commercial Operations
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|
|
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
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Jodi Robinson
|
|
Senior Vice President, UX Design and Development
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|
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Jay Rolls
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|
Senior Vice President, Chief Technology Officer
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|
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Gary Schanman
|
|
Senior Vice President, Video Products
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|
|
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Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
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|
|
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Allan Singer
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|
Senior Vice President, Programming
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Daniel J. Bollinger
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|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
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|
|
|
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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|
|
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David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
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|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
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Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
TWCIS Holdco LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.395
|
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JUL-14-2003 17:42 CT CORPORATION SYS
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1212 894 8490 P.07
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:48 PM 07/14/2003
FILED 08:48 PM 07/14/2003
SRV 030461133 – 3681461 FILE
|
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (KANSAS), LLC
This Certificate of Formation of Time Warner Cable Information Services (Kansas), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Kansas), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Cable Inc., Managing Member,
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By:
|
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President, Voice
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC.doc
Exhibit 3.396
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (KANSAS), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Kansas), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Kansas), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (KANSAS), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Kansas), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.397
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 07:28 PM 02/21/2006
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FILED 07:08 PM 02/21/2006
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SRV 060163639 – 4113484 FILE
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CERTIFICATE OF FORMATION
OF
TWCIS(KY), LLC
This Certificate of Formation of TWCIS(KY), LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWCIS(KY), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 21st day of February, 2006.
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Time Warner NY Cable LLC, Sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Assistant Secretary
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC - TWNYC.doc
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 07:12 PM 03/08/2006
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FILED 07:12 PM 03/08/2006
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SRV 060229945 – 4113484 FILE
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
TWCIS(KY), LLC
1. The name of the limited liability company is TWCIS(KY), LLC.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company is Time Warner Cable Information Services (Kentucky), LLC.
3. This Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 8
th
day of March, 2006.
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Time Warner NY Cable LLC, sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Asst. Secretary
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N:\Law\Riina\Entities\Forms\LLC\Amend of Cert of Form.doc
Exhibit 3.398
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (KENTUCKY), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Kentucky), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Kentucky), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (KENTUCKY), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Kentucky), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.399
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/17/2002
020246811 – 3515695
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (MAINE), LLC
This Certificate of Formation of Time Warner Cable Information Services (Maine), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Maine), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective at the time of filing with the Delaware Secretary of State.
IN WITNESS WHEREOF, the undersigned, an
authorized person of the Company, has executed this Certificate of Formation this 16th day of April, 2002.
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/s/ Jill A. Clarke
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Jill A. Clarke
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Exhibit 3.400
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (MAINE), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Maine), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Maine), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (MAINE), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Maine), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.401
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JAN-12-2004 12:06
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CT CORPORATION SYS
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1212 894 8490 P.07
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 01:26 PM 01/12/2004
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FILED 01:26 PM 01/12/2004
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SRV 040020079 – 3751361 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (MASSACHUSETTS), LLC
This Certificate of Formation of Time Warner Cable Information Services (Massachusetts),
LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Massachusetts), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 8th day of January, 2004.
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Time Warner Entertainment-Advance/Newhouse Partnership, Member,
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by Time Warner Entertainment Company, L.P., Managing General Partner,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell, Senior Vice President, Voice, Cable Group
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N:\Law\riina\Entities\Telephony\LLC Formation - TWCIS(MA).doc
Exhibit 3.402
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (MASSACHUSETTS), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Massachusetts), LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Massachusetts), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members
on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (MASSACHUSETTS), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Massachusetts), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.403
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 10:36 AM 04/03/2008
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FILED 10:36 AM 04/03/2008
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SRV 080389395 – 4528579 FILE
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CERTIFICATE OF FORMATION
OF
TIME
WARNER CABLE INFORMATION SERVICES (MICHIGAN), LLC
This Certificate of Formation of Time Warner Cable Information
Services (Michigan), LLC (the “Company”) is being executed by the undersigned for the purpose of fanning a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Michigan), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the
Company, has executed this Certificate of Formation this 3rd day of April, 2008.
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/s/ Riina Tohvert
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Riina Tohvert, Authorized Person
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Exhibit 3.404
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (MICHIGAN), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Michigan), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Michigan), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (MICHIGAN), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Michigan), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.405
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JUL-14-2003 17:42
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CT CORPORATION SYS
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1212 894 8490 P.08
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (MISSOURI), LLC
This Certificate of Formation of Time Warner Cable Information Services (Missouri), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Missouri), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Entertainment Company, L.P.,
Managing Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President, Voice, Cable Group
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC.doc
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:49 PM 07/14/2003
FILED 08:49 PM 07/14/2003
SRV 030461135 – 3681455 FILE
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Exhibit 3.406
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (MISSOURI), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Missouri), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Missouri), LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on
the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in equity, (i) neither a
Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or
the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and
their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and
description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding
any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by
unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any
position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as
amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (MISSOURI), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Missouri), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
|
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Senior Vice President
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|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
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|
|
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Matthew Siegel
|
|
Senior Vice President
|
|
|
|
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Michael W. Quinn
|
|
Group Vice President
|
|
|
|
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Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
TWCIS Holdco LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.407
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State of Delaware
Secretary of State
Division of Corporations
Delivered 02:01 PM 12/05/2003
FILED 02:01 PM 12/05/2003
SRV 030781344 – 3736164 FILE
|
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEBRASKA), LLC
This Certificate of Formation of Time Warner Cable Information Services (Nebraska), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Nebraska), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 2nd day of December, 2003.
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Time Warner Cable Inc., Member,
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By:
|
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/s/ Carl U.J. Rossetti
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Carl U.J. Rossetti,
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Executive Vice President,
New Business
Development
|
Exhibit 3.408
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEBRASKA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Nebraska), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Nebraska), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered
agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from
time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (NEBRASKA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Nebraska), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.409
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:44 PM 01/30/2004
FILED 01:44 PM 01/30/2004
SRV 040066179 – 3759011 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW HAMPSHIRE), LLC
This Certificate of Formation of Time Warner Cable Information Services (New Hampshire),
LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (New Hampshire), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 28th day of January, 2004.
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Time Warner Cable Inc.,
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Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President, Voice
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N:\Law\riina\Entities\Telephony\LLC Formation - TWCIS(NH).doc
Exhibit 3.410
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW HAMPSHIRE), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (New Hampshire), LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (New Hampshire), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons
may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue
of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of
the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures
of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the
Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (NEW HAMPSHIRE), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (New Hampshire), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.411
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JAN-12-2004 12:06
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CT CORPORATION SYS
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1212 894 8490 P.09
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW JERSEY), LLC
This Certificate of Formation of Time Warner Cable Information Services (New Jersey), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (New Jersey), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 8th day of January, 2004.
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TWFanch-one Co., Member,
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by Time Warner Entertainment Company, L.P., General Partner,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell, Senior Vice President, Voice, Cable Group
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 01:31 PM 01/12/2004
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N:\Law\riina\Entities\Telephony\LLC Formation - TWCIS(NJ).doc
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FILED 01:31 PM 01/12/2004
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SRV 040020095 – 3751379 FILE
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Exhibit 3.412
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW JERSEY), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (New Jersey), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (New Jersey), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for
service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time
by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St.
Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to
the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such
other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice
given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the
Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended
to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other persons
may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue
of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of
the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures
of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the
Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the
properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more
than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without
the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in
the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the
transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall
be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (NEW JERSEY), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (New Jersey), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Economic Interest
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Members
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Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.413
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:06 PM 01/12/2007
FILED 07:06 PM 01/12/2007
SRV 070042980 – 4284900 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW MEXICO), LLC
This Certificate of Formation of Time Warner Cable Information Services (New Mexico), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (New Mexico), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 12th day of January, 2007.
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/s/ Riina Tohvert
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Riina Tohvert, Authorized Person
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Exhibit 3.414
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW MEXICO), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (New Mexico), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (New Mexico), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members
shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by
unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
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Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
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Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
TIME WARNER CABLE INFORMATION SERVICES (NEW MEXICO), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (New Mexico), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
|
|
|
|
|
Thomas M. Rutledge
|
|
President and Chief Executive Officer
|
|
|
|
|
Christopher L. Winfrey
|
|
Executive Vice President and Chief Financial Officer
|
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|
|
|
John Bickham
|
|
Executive Vice President, Chief Operating Officer
|
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|
|
Phil Meeks
|
|
Executive Vice President, Business Enterprise Services
|
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|
Don Detampel
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|
Executive Vice President and President, Commercial Services
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|
Richard R. Dykhouse
|
|
Executive Vice President, General Counsel and Corporate Secretary
|
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Jonathan Hargis
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|
Executive Vice President, Chief Marketing Officer
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Thomas Adams
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|
Executive Vice President, Field Operations
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James Blackley
|
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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|
Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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|
Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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|
Executive Vice President, Network Operations
|
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
|
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Thomas B. Anema
|
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Senior Vice President, Commercial Finance
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Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
|
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Rocky Boler
|
|
Senior Vice President, Customer Care
|
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Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
|
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Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
|
|
|
|
|
Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
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|
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Alexander Dudley
|
|
Senior Vice President, Communications
|
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Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
|
|
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Adam Falk
|
|
Senior Vice President, State Government Affairs
|
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Charlotte Field
|
|
Senior Vice President, Application Platform
Ops
|
A-1
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|
Name
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Title
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Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
|
|
|
James M. Heneghan
|
|
President, Charter Media
|
|
|
|
|
Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
|
|
|
Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
|
|
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|
|
Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
|
|
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
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|
Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
|
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|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
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|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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|
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Jodi Robinson
|
|
Senior Vice President, UX Design and Development
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|
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
|
|
Senior Vice President, Video Products
|
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|
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Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
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|
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Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
|
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Alan Jones
|
|
Vice President, Tax
|
|
|
|
|
Meredith Garwood
|
|
Group Vice President, Tax
|
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|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
TWCIS Holdco LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.415
|
|
|
|
|
FROM RICHARDS, FINGER & LAYTON #1
|
|
(TUE) 7.14’98 9:57/ST. 9:56/NO. 4861004248 P
1
|
STATE OF DELAWARE
CERTIFICATE OF FORMATION
OF
TIME WARNER RESCOM
OF NEW YORK LLC
The undersigned have executed and filed this Certificate of Formation as authorized persons in order to form Time
Warner ResCom of New York LLC (the “Company”) as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act, and in connection therewith do hereby certify as follows:
FIRST:
The name of the Company is Time Warner ResCom of New York LLC.
SECOND:
The address of the Company’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, Delaware, 19801. The name of the Company’s Registered Agent at such address is The Corporation Trust Company.
THIRD:
This Certificate of Formation shall be effective at the time of filing with the Delaware Secretary of State.
Date: July 14, 1998.
|
|
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|
|
|
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|
|
Time Warner AxS of Rochester, L.P.
|
|
|
|
|
By:
|
|
Time Warner Communications, General Partner
|
|
|
|
|
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|
|
By:
|
|
Time Warner Communications Holdings Inc., General Partner
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Gail L. Allaman
|
|
|
|
|
|
Name:
|
|
Gail L. Allaman
|
|
|
|
|
|
Title:
|
|
Vice President
|
|
|
|
|
|
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:30 AM 07/14/1998
981271631 – 2919253
|
|
|
|
|
|
FROM RICHARDS, FINGER & LAYTON #1
|
|
(TUE) 7.14’98 9:57/ST. 9:56/NO. 4861004248 P
2
|
|
|
|
|
|
|
|
|
|
Time Warner AxS of New York City, L.P.
|
|
|
|
|
By:
|
|
Time Warner Communications, General Partner
|
|
|
|
|
|
|
|
By:
|
|
Time Warner Communications Holdings Inc., General Partner
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Gail L. Allaman
|
|
|
|
|
|
Name:
|
|
Gail L. Allaman
|
|
|
|
|
|
Title:
|
|
Vice President
|
BOULDER:0029892
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 10:11 AM 09/30/2011
FILED 10:11 AM 09/30/2011
SRV 111057641 – 2919253 FILE
|
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
TIME WARNER RESCOM OF NEW YORK
LLC
|
1.
|
The name of the limited liability company is Time Warner ResCom of New York LLC.
|
|
2.
|
The Certificate of Formation of the limited liability company is hereby amended as follows:
|
The name of the limited liability company is Time Warner Cable Information Services (New York), LLC.
|
3.
|
This Certificate of Amendment shall be effective on October 1, 2011.
|
IN WITNESS WHEREOF, the
undersigned has executed this Certificate of Amendment this 30th day of September, 2011.
|
|
|
|
|
TWCIS Holdco LLC, sole member,
|
|
|
|
|
By:
|
|
/s/ Riina Tohvert
|
|
|
|
Riina Tohvert, Authorized Person
|
2
Exhibit 3.416
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (NEW YORK), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (New York), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (New York), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for
service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time
by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St.
Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the
President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy,
each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (NEW YORK), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (New York), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.417
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 04/07/2003
030227458 – 3644835
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (NORTH CAROLINA), LLC
This Certificate of Formation of Time Warner Cable Information Services (North Carolina),
LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (North Carolina), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 1st day of April, 2003.
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/s/ Gerald Campbell
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Gerald Campbell
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Senior Vice President, Time Warner Cable Inc.,
its Managing Member
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N:\Law\riina\Forms\LLC\Certificate of Formation LLC.doc
Exhibit 3.418
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (NORTH CAROLINA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (North Carolina), LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (North Carolina), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set
forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts
in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic
Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (NORTH CAROLINA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (North Carolina), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.419
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JUL-14-2003 17:42
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CT CORPORATION SYS
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1212 894 8490 P.09
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:49 PM 07/14/2003
FILED 08:49 PM 07/14/2003
SRV 030461136 – 3681452 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (OHIO), LLC
This Certificate of Formation of Time Warner Cable Information Services (Ohio), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Ohio), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Cable Inc., Managing Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President, Voice
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC.doc
Exhibit 3.420
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (OHIO), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Ohio), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Ohio), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
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Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
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Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (OHIO), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Ohio), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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|
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|
Don Detampel
|
|
Executive Vice President and President, Commercial Services
|
|
|
|
|
Richard R. Dykhouse
|
|
Executive Vice President, General Counsel and Corporate Secretary
|
|
|
|
|
Jonathan Hargis
|
|
Executive Vice President, Chief Marketing Officer
|
|
|
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|
Thomas Adams
|
|
Executive Vice President, Field Operations
|
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|
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|
James Blackley
|
|
Executive Vice President, Engineering and Information Technology
|
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|
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Catherine C. Bohigian
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|
Executive Vice President, Government Affairs
|
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Richard J. DiGeronimo
|
|
Executive Vice President, Product and Strategy
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David Kline
|
|
Executive Vice President, Advertising Sales
|
|
|
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|
Paul Marchand
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|
Executive Vice President, Human Resources
|
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Kathleen Mayo
|
|
Executive Vice President, Customer Operations
|
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|
James Nuzzo
|
|
Executive Vice President, Business Planning
|
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|
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|
David Scott Weber
|
|
Executive Vice President, Network Operations
|
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|
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Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
|
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|
|
|
Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
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|
|
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|
Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
|
|
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Rocky Boler
|
|
Senior Vice President, Customer Care
|
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|
Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
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|
Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
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|
|
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|
Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
|
|
|
Alexander Dudley
|
|
Senior Vice President, Communications
|
|
|
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|
Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
|
|
|
|
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Adam Falk
|
|
Senior Vice President, State Government Affairs
|
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|
|
Charlotte Field
|
|
Senior Vice President, Application Platform Ops
|
A-1
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Name
|
|
Title
|
|
|
|
|
Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
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James M. Heneghan
|
|
President, Charter Media
|
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Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
|
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|
Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
|
|
|
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Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
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|
|
|
James F. McGann, Jr.
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Senior Vice President, Charter Business
|
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|
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Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
|
|
|
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Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
|
|
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Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
|
|
Jodi Robinson
|
|
Senior Vice President, UX Design and Development
|
|
|
|
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Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
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|
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Gary Schanman
|
|
Senior Vice President, Video Products
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|
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Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
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|
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Allan Singer
|
|
Senior Vice President, Programming
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Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
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|
|
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Alan Jones
|
|
Vice President, Tax
|
|
|
|
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Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
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Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
TWCIS Holdco LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.421
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JAN-12-2004 12:06
|
|
CT CORPORATION SYS
|
|
1212 894 8490 P.10
|
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (PENNSYLVANIA), LLC
This Certificate of Formation of Time Warner Cable Information Services (Pennsylvania), LLC
(the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Pennsylvania), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 8th day of January, 2004.
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|
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Time Warner Cable Inc., Member,
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|
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By:
|
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/s/ Gerald D. Campbell
|
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Gerald D. Campbell,
|
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|
Senior Vice President, Voice
|
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|
N:\Law\riina\Entities\Forms\LLC\LLC Formation - TWCIS(PA).doc
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 01:26 PM 01/12/2004
FILED 01:26 PM 01/12/2004
SRV 040020086 – 3751375 FILE
|
Exhibit 3.422
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (PENNSYLVANIA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Pennsylvania), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Pennsylvania), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service
of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set
forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts
in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic
Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (PENNSYLVANIA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Pennsylvania), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.423
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State of Delaware
Secretary of State
Division of Corporations
Delivered 08:50 PM 07/14/2003
FILED 08:50 PM 07/14/2003
SRV 030461138 - 3681447 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (SOUTH CAROLINA), LLC
This Certificate of Formation of Time Warner Cable Information Services (South Carolina),
LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (South Carolina), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Cable Inc., Managing Member,
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President, Voice
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC.doc
TOTAL P.10
Exhibit 3.424
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (SOUTH CAROLINA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (South Carolina), LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (South Carolina), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (SOUTH CAROLINA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (South Carolina), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.425
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State of Delaware
Secretary of State
Division of Corporations
Delivered 06:48 PM 09/26/2011
FILED 06:48 PM 09/26/2011
SRV 111043023 – 5043603 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (TENNESSEE), LLC
This Certificate of Formation of Time Warner Cable Information Services (Tennessee), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Tennessee), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 26th day of September, 2011.
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/s/ Riina Tohvert
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Riina Tohvert, Authorized Person
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Exhibit 3.426
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (TENNESSEE), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Tennessee), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Tennessee), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the
registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be
changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at
12405 Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (TENNESSEE), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Tennessee), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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|
Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
|
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
|
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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|
|
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|
Members
|
|
Economic Interest
Percentage
|
|
|
TWCIS Holdco LLC
|
|
|
100
|
%
|
|
|
|
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|
|
|
|
|
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Total
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|
|
100
|
%
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B-1
Exhibit 3.427
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:50 AM 04/27/2007
FILED 08:00 AM 04/27/2007
SRV 070486058 – 3682319 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (TEXAS), LLC
This Certificate of Formation of Time Warner Cable Information Services (Texas), LLC (the
“
Company
”), dated April 27, 2007, is being duly executed and filed by Riina Tohvert, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act
(6 Del.
C. §18-101,
et
seq.).
FIRST. The name of the limited liability company formed hereby is Time Warner Cable Information Services (Texas), LLC.
SECOND. The address of the registered office of the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware, 19801.
THIRD. The name and address of the registered agent for
service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware, 19801.
FOURTH. This Certificate of Formation shall be effective upon filing.
IN WITNESS THEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.
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/s/ Riina Tohvert
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Name:
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Riina Tohvert
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Title:
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Authorized Person
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Doc #:NY7:368109.1
Exhibit 3.428
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (TEXAS), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Texas), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Texas), LLC. The business of the Company shall
be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (TEXAS), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Texas), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.429
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:29 PM 02/21/2006
FILED 07:11 PM 02/21/2006
SRV 060163658 – 4113489 FILE
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CERTIFICATE OF FORMATION
OF
TWCIS(VA), LLC
This Certificate of Formation of TWCIS(VA), LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWCIS(VA), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 21st day of February, 2006.
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Time Warner NY Cable LLC, Sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Assistant Secretary
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation LLC - TWNYC.doc
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:12 PM 03/08/2006
FILED 07:12 PM 03/08/2006
SRV 060229948 – 4113489 FILE
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
TWCIS(VA), LLC
1. The name of the limited liability company is TWCIS(VA), LLC.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company is Time Warner Cable Information Services (Virginia), LLC.
3. This Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 8
th
day of March, 2006.
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Time Warner NY Cable LLC, sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Asst. Secretary
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N:\Law\Riina\Entities\Forms\LLC\Amend of Cert of Form.doc
Exhibit 3.430
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (VIRGINIA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Virginia), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Virginia), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service
of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of
the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President,
with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (VIRGINIA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Virginia), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.431
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:50 PM 10/10/2006
FILED 01:50 PM 10/10/2006
SRV 060928402 – 4233274 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (WASHINGTON), LLC
This Certificate of Formation of Time Warner Cable Information Services (Washington), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Washington), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of October, 2006.
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By:
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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N:\Law\Riina\Entities\Forms\LLC\Certificate of Formation LLC - TWNYC.doc
Exhibit 3.432
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (WASHINGTON), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Washington), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Washington), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered
agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from
time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of
the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President,
with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (WASHINGTON), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Washington), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.433
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SEP-08-2004 12:19
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CT CORPORATION SYS
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1212 894 8490 P.03
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:40 PM 09/08/2004
FILED 01:40 PM 09/08/2004
SRV 040650526 – 3851953 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (WEST VIRGINIA), LLC
This Certificate of Formation of Time Warner Cable Information Services (West Virginia),
LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (West Virginia), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 8th day of September, 2004.
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Time Warner Cable Inc.,
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Sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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VP & Asst. Secretary
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N:\Law\riina\Entities\Forms\LLC\Certificate of Formation - TWCIS.doc
TOTAL P.03
Exhibit 3.434
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (WEST VIRGINIA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (West Virginia), LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (West Virginia), LLC. The business of the
Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered
agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from
time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of
the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President,
with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the
contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the
names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the
Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (WEST VIRGINIA), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (West Virginia), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.435
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State of Delaware
Secretary of State
Division of Corporations
Delivered 06:00 PM 07/15/2003
FILED 06:00 PM 07/15/2003
SRV 030464271 - 3682420 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (WISCONSIN), LLC
This Certificate of Formation of Time Warner Cable Information Services (Wisconsin), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (Wisconsin), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 10th day of July, 2003.
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Time Warner Entertainment Company, L P., Managing Member,
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Name of General Partner is Time Warner Cable Inc.
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By:
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/s/ Gerald D. Campbell
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Gerald D. Campbell,
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Senior Vice President
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Exhibit 3.436
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (WISCONSIN), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWCIS Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Information Services (Wisconsin), LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Information Services (Wisconsin), LLC. The business of the Company
shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for
service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time
by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St.
Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including
this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit
A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of
the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President,
with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to
the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such
other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice
given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the
Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each
Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash
and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and
losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution;
Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members
acting by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INFORMATION SERVICES (WISCONSIN), LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Information Services (Wisconsin), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWCIS Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.437
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State of Delaware
Secretary of State
Division of Corporations
Delivered 02:33 PM 11/18/2013
FILED 02:25 PM 11/18/2013
SRV 131320025 - 5434116 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INTERNATIONAL LLC
This Certificate of Formation of Time Warner Cable International LLC (the “Company”) is being executed by
the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The
name of the Company is Time Warner Cable International LLC.
2. The address of the registered office of the Company in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 18
th
day of November, 2013.
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/s/ William C. Wesselman
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William C. Wesselman,
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Authorized Person
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Exhibit 3.438
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INTERNATIONAL LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable International LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable International LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from
time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INTERNATIONAL LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable International LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.439
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State of Delaware
Secretary of State
Division of Corporations
Delivered 12:36 PM 10/11/2013
FILED 12:36 PM 10/11/2013
SRV 131188711 – 5414460 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INTERNET HOLDINGS III LLC
This Certificate of Formation of Time Warner Cable Internet Holdings III LLC (the “Company”) is
being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Internet Holdings III LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 11th day of October, 2013.
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/s/ William C. Wesselman
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William C. Wesselman,
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Authorized Person
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Exhibit 3.440
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INTERNET HOLDINGS III LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Internet Holdings III LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Internet
Holdings III LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
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Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
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Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INTERNET HOLDINGS III LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Internet Holdings III LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
|
|
Executive Vice President, Chief Marketing Officer
|
|
|
|
|
Thomas Adams
|
|
Executive Vice President, Field Operations
|
|
|
|
|
James Blackley
|
|
Executive Vice President, Engineering and Information Technology
|
|
|
|
|
Catherine C. Bohigian
|
|
Executive Vice President, Government Affairs
|
|
|
|
|
Richard J. DiGeronimo
|
|
Executive Vice President, Product and Strategy
|
|
|
|
|
David Kline
|
|
Executive Vice President, Advertising Sales
|
|
|
|
|
Paul Marchand
|
|
Executive Vice President, Human Resources
|
|
|
|
|
Kathleen Mayo
|
|
Executive Vice President, Customer Operations
|
|
|
|
|
James Nuzzo
|
|
Executive Vice President, Business Planning
|
|
|
|
|
David Scott Weber
|
|
Executive Vice President, Network Operations
|
|
|
|
|
Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
|
|
|
|
|
Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
|
|
|
|
|
Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
|
|
|
|
|
Rocky Boler
|
|
Senior Vice President, Customer Care
|
|
|
|
|
Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
|
|
|
|
|
Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
|
|
|
|
|
Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
|
|
|
Alexander Dudley
|
|
Senior Vice President, Communications
|
|
|
|
|
Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
|
|
|
|
|
Adam Falk
|
|
Senior Vice President, State Government Affairs
|
|
|
|
|
Charlotte Field
|
|
Senior Vice President, Application Platform Ops
|
A-1
|
|
|
|
|
Name
|
|
Title
|
|
|
|
|
Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
|
|
|
James M. Heneghan
|
|
President, Charter Media
|
|
|
|
|
Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
|
|
|
Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
|
|
|
|
|
Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
|
|
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
|
|
|
|
Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
|
|
|
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
|
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
|
|
Jodi Robinson
|
|
Senior Vice President, UX Design and Development
|
|
|
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
|
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
|
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
|
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
|
|
Alan Jones
|
|
Vice President, Tax
|
|
|
|
|
Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Enterprises LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.441
|
|
|
|
|
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|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:44 PM 07/27/2012
FILED 06:22 PM 07/27/2012
SRV 120882101 – 5190792 FILE
|
|
|
|
|
|
|
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INTERNET HOLDINGS LLC
This Certificate of Formation of Time Warner Cable Internet Holdings LLC (the “Company”) is being
executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Internet Holdings LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 27th day of July, 2012.
|
|
|
/s/ William C. Wesselman
|
|
William C. Wesselman,
|
|
Authorized Person
|
Exhibit 3.442
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INTERNET HOLDINGS LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Internet Holdings LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Internet Holdings LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as
a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall
not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company
interest may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not
bear a legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of
any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and
compliance with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INTERNET HOLDINGS LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Internet Holdings LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
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Delaware
The First State
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Exhibit 3.443
Page
1
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “TIME WARNER CABLE INTERNET LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE SIXTH DAY OF MAY, A.D. 1998, AT 10 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “CABLE HOLDCO LLC” TO “ROAD RUNNER HOLDCO LLC”, FILED THE SIXTEENTH
DAY OF MAY, A.D. 2001, AT 9 O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, FILED THE SEVENTH DAY OF APRIL, A.D. 2003, AT 11:30
O’CLOCK A.M.
CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “ROAD RUNNER HOLDCO LLC” TO “TIME WARNER CABLE
INTERNET LLC”, FILED THE THIRTEENTH DAY OF DECEMBER, A.D. 2012, AT 6:08 O’CLOCK P.M.
AND I DO HEREBY FURTHER CERTIFY
THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORDS OF THE AFORESAID LIMITED LIABILITY COMPANY, “TIME WARNER CABLE INTERNET LLC”.
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2893091 8100H
SR# 20165703223
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/s/ Jeffrey W. Bullock
Jeffrey W. Bullock, Secretary of State
Authentication: 202957042
Date:
09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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STATE OF DELAWARE SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 05/06/1998
981173608 – 2893091
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CERTIFICATE OF FORMATION
OF
CABLE HOLDCO LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and
subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability
Company Act”), hereby certifies that:
FIRST
: The name of the limited liability company (hereinafter called
the “limited liability company”) is Cable HoldCo LLC.
SECOND
: The address of the registered office and the
name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are National Corporate Research, Ltd., 9 East Loockerman Street, Dover,
Delaware 19901.
Executed on May 6, 1998.
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/s/ Dalia Litay
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Name: Dalia Litay
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Title: Authorized Person
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION
OF CORPORATIONS
FILED 09:00 AM 05/16/2001
010234777 – 2893091
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
CABLE HOLDCO LLC
It is
hereby certified that:
FIRST
: The name of the limited liability company is Cable HoldCo LLC (the
“Limited Liability Company”).
SECOND
: Pursuant to the provisions of Section 18-202, Title 6, of the Delaware Code,
the Certificate of Formation is hereby amended to change the name of the Limited Liability Company from Cable HoldCo LLC to Road Runner HoldCo LLC by changing the Paragraph First thereof so that, as amended, said
Paragraph shall be and read as follows:
“
FIRST
: The name of the limited liability company (hereinafter
called the “Limited Liability Company”) is Road Runner HoldCo LLC.”
IN WITNESS WHEREOF, the undersigned has executed
this Certificate of Amendment to the Certificate of Formation on May 16, 2001.
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/s/ James R. Brueneman
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|
Name: James R. Brueneman
|
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Title: Vice President, General Counsel
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CERTIFICATE OF AMENDMENT
OF
ROAD RUNNER HOLDCO
LLC
1. The name of the limited liability company is ROAD RUNNER HOLDCO LLC
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the Registered agent is:
The Corporation Trust
Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(County of New Castle)
3. This Certificate of Amendment shall be effective on upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of ROAD RUNNER HOLDCO LLC this 19
th
day of March, 2003.
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/s/ David A. Christman
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Time Warner Entertainment Company, L.P.,
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Managing Member, through its Time Warner
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Cable Division by David A. Christman,
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Vice President
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION
OF CORPORATIONS
FILED 11:30 AM 04/07/2003
030227472 – 2893091
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State of Delaware
Secretary of State
Division
of Corporations
Delivered 06:35 PM 12/13/2012
FILED 06:08 PM 12/13/2012
SRV 121338983 – 2893091 FILE
|
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
ROAD RUNNER HOLDCO LLC
It is hereby
certified that:
FIRST
: The name of the limited liability company is Road Runner HoldCo LLC (the “Limited Liability
Company”).
SECOND
: Pursuant to the provisions of Section 18-202, Title 6, of the Delaware Code, the Certificate of Formation
is hereby amended to change the name of the Limited Liability Company from Road Runner HoldCo LLC to Time Warner Cable Internet LLC by changing the Paragraph First thereof so that, as amended said Paragraph shall be and read as follows:
“
FIRST
: The name of the limited liability company (hereinafter called the “Limited Liability Company”) is
Time Warner Cable Internet LLC.”
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of the Certificate
of Formation on December 13, 2012.
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By:
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/s/ David A. Christman
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David A. Christman,
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SVP & Assistant Secretary
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|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 05/06/1998
981173608 – 2893091
|
CERTIFICATE OF FORMATION
OF
CABLE HOLDCO LLC
The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and
subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “Delaware Limited Liability
Company Act”), hereby certifies that:
FIRST
: The name of the limited liability company (hereinafter called
the “limited liability company”) is Cable HoldCo LLC.
SECOND
: The address of the registered office and the
name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are National Corporate Research, Ltd., 9 East Loockerman Street, Dover,
Delaware 19901.
Executed on May 6, 1998.
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/s/ Dalia Litay
|
|
Name: Dalia Litay
|
|
Title: Authorized Person
|
|
|
|
|
|
|
|
|
|
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION
OF CORPORATIONS
FILED 09:00 AM 05/16/2001
010234777 – 2893091
|
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
CABLE HOLDCO LLC
It is
hereby certified that:
FIRST
: The name of the limited liability company is Cable HoldCo LLC (the
“Limited Liability Company”).
SECOND
: Pursuant to the provisions of Section l8-202, Title 6, of the Delaware Code,
the Certificate of Formation is hereby amended to change the name of the Limited Liability Company from Cable HoldCo LLC to Road Runner HoldCo LLC by changing the Paragraph First thereof so that, as amended, said
Paragraph shall be and read as follows:
“
FIRST
: The name of the limited liability company (hereinafter
called the “Limited Liability Company”) is Road Runner HoldCo LLC.”
IN WITNESS WHEREOF, the undersigned has executed
this Certificate of Amendment to the Certificate of Formation on May 16, 2001.
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|
/s/ James R. Brueneman
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|
Name:
|
|
James R. Brueneman
|
|
Title:
|
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Vice President, General Counsel
|
CERTIFICATE OF AMENDMENT
OF
ROAD RUNNER HOLDCO
LLC
1. The name of the limited liability company is ROAD RUNNER HOLDCO LLC
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the Registered agent is:
The Corporation Trust
Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(County of New Castle)
3. This Certificate of Amendment shall be effective on upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of ROAD RUNNER HOLDCO LLC this 19
th
day of March, 2003.
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/s/ David A. Christman
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|
Time Warner Entertainment Company, L.P.,
Managing Member, through its Time Warner
Cable
Division by David A. Christman,
Vice President
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION
OF CORPORATIONS
FILED 11:30 AM 04/07/2003
030227472
–
2893091
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:35 PM 12/13/2012
FILED 06:08 PM 12/13/2012
SRV 121338983 – 2893091 FILE
|
|
|
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF
FORMATION
OF
ROAD RUNNER HOLDCO LLC
It is
hereby certified that:
FIRST
: The name of the limited liability company is Road Runner HoldCo LLC (the “Limited
Liability Company”).
SECOND
: Pursuant to the provisions of Section 18-202, Title 6, of the Delaware Code, the Certificate of
Formation is hereby amended to change the name of the Limited Liability Company from Road Runner HoldCo LLC to Time Warner Cable Internet LLC by changing the Paragraph First thereof so that, as amended said Paragraph shall be and read as follows:
“
FIRST
: The name of the limited liability company (hereinafter called the “Limited Liability Company”) is Time
Warner Cable Internet LLC.”
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment to the Certificate of
Formation on December 13, 2012.
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By:
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/s/ David A. Christman
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David A. Christman,
SVP & Assistant Secretary
|
Exhibit 3.444
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
INTERNET LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company, Time Warner Cable Internet Holdings III LLC, a Delaware limited liability company, and Time Warner Cable Internet Holdings LLC, a
Delaware limited liability company (each a “
Member
” and collectively, the “
Members
”), as all of the members of Time Warner Cable Internet LLC, a Delaware limited liability company (the “
Company
”),
the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Members desire to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Internet LLC.
The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the
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“
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or
under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
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(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
7
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the
purposes of winding up its business and affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this
Agreement and the Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members,
including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the
payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the
Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses
that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall
transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each
of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the
transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members,
8
Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be
liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises
out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as
applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the
assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no
recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair
dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or
completed claim, action, suit or proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of
the fact that such person is or was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company,
any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of
the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such
claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad
faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with
reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such
affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or
settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful
misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this
Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
9
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager,
director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member, Manager, director,
officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement,
to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other
duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
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(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of
this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated
accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE INTERNET LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBERS
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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TIME WARNER CABLE INTERNET HOLDINGS III LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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TIME WARNER CABLE INTERNET HOLDINGS LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Internet LLC]
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Internet LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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|
Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
|
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Title
|
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
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|
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Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Enterprises LLC
|
|
|
68.33
|
%
|
|
Time Warner Cable Internet Holdings III LLC
|
|
|
31.57
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%
|
|
Time Warner Cable Internet Holdings LLC
|
|
|
0.10
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%
|
|
|
|
|
|
|
|
Total
|
|
|
100.00
|
%
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B-1
Exhibit 3.445
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 11:22 AM 05/17/2016
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FILED 11:22 AM 05/17/2016
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SR 20163293400 - File Number 4921096
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|
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
MEDIA LLC
This Certificate of Formation of Time Warner Cable Media LLC (the “Company”) is being executed by the
undersigned, an authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
|
The name of the limited liability company is Time Warner Cable Media LLC.
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2.
|
The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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|
3.
|
This Certificate of Formation shall be effective as of 11:58 p.m. on May 17, 2016.
|
IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
|
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
|
Exhibit 3.446
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
MEDIA LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC NewCo LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Media LLC, a Delaware limited liability company (the “
Company
”),
the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Media LLC. The
business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by
law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the
Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for
payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the
assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s
limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such
person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of
conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s
investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their
affiliates, except as expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under
applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a
Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on
behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or
any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such
Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by
any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer,
or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by
this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or
any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TIME WARNER CABLE MEDIA LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TWC NEWCO LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Media LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC NewCo LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.447
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:18 PM 02/06/2012
FILED 04:51 PM 02/06/2012
SRV 120128420 – 5105754 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
MIDWEST LLC
This Certificate of Formation of Time Warner Cable Midwest LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Time Warner Cable Midwest LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 6th day of February,
2012.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 12:12 PM 09/28/2012
FILED 12:18 PM 09/28/2012
SRV 121079325 – 5105754 FILE
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC CORPORATION INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act,
and Title 8, Section 264 of the Delaware General Corporation Law.
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First:
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The name of the surviving limited liability company is Time Warner Cable Midwest LLC, a Delaware limited liability company.
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Second:
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The name of the corporation being merged into the surviving limited liability company is Century Venture Corporation, a Delaware corporation.
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Third:
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The agreement of merger or consolidation has been approved and executed by each of the business entities which is to merge or consolidate.
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Fourth:
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The merger is to become effective as of 12:08 a.m, on September 30, 2012.
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Fifth:
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An agreement of merger or consolidation is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY
10023.
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Sixth:
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A copy of the agreement of merger or consolidation will be furnished by the surviving limited liability company, on request, without cost, to any stockholder of any domestic corporation or any person holding an
interest in any other business entity which is to merge or consolidate.
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IN WITNESS WHEREOF, said surviving limited
liability company has caused this certificate to be signed by an authorized person, this 28
th
day of September, 2012.
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TIME WARNER CABLE MIDWEST LLC,
a Delaware limited liability company
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By:
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/s/ Satish Adige
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Satish Adige
Senior Vice President,
Investments
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:30 PM 10/29/2013
FILED 07:34 PM 10/29/2013
SRV 131248553 – 5105754 FILE
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
FOREIGN CORPORATION INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act,
and Title 15, Section 1921 of the Pennsylvania Associations Code.
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First:
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The name of the surviving limited liability company is Time Warner Cable Midwest LLC, a Delaware limited liability company.
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Second:
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The name of the corporation being merged into the surviving limited liability company is Erie Telecommunications, Inc., a Pennsylvania corporation.
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Third:
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The agreement of merger has been approved and executed by each of the business entities which is to merge.
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Fourth:
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The merger is to become effective as of 12:02 a.m. on November 1, 2013.
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Fifth:
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An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
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Sixth:
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A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of Time Warner Cable Midwest LLC, the surviving domestic limited liability company,
or to any person holding an interest in Erie Telecommunications, Inc., the other business entity which is to merge.
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IN
WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an authorized person, this 28
th
day of October, 2013.
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TIME WARNER CABLE MIDWEST LLC,
a Delaware limited liability company
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By:
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/s/ Satish Adige
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Satish Adige
Senior Vice President,
Investments
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Exhibit 3.448
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
MIDWEST LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Midwest LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Midwest LLC.
The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than
the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property
or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such
a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by
law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the
Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for
payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the
assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s
limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend Exhibit B hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such
person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of
conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s
investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their
affiliates, except as expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under
applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a
Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on
behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or
any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such
Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by
any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer,
or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by
this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or
any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE MIDWEST LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Midwest LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.449
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:17 PM 02/06/2012
FILED 04:45 PM 02/06/2012
SRV 120128347 – 5105744 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
NEW YORK CITY LLC
This Certificate of Formation of Time Warner Cable New York City LLC (the “Company’’) is being
executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable New York City LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE
19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation
shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate
of Formation this 6th day of February, 2012.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized
Person
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Exhibit 3.450
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
NEW YORK CITY LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable New York City LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable New York City
LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than
the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property
or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such
a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE NEW YORK CITY LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable New York City LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.451
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:18 PM 02/06/2012
FILED 04:53 PM 02/06/2012
SRV 120128436 - 5105758 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
NORTHEAST LLC
This Certificate of Formation of Time Warner Cable Northeast LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Time Warner Cable Northeast LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 6th day of February,
2012.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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Exhibit 3.452
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
NORTHEAST LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Northeast LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Northeast LLC.
The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE NORTHEAST LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Northeast LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.453
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:18 PM 02/06/2012
FILED 04:46 PM 02/06/2012
SRV 120128362 - 5105746 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
PACIFIC WEST LLC
This Certificate of Formation of Time Warner Cable Pacific West LLC (the “Company”) is being executed by
the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name
of the Company is Time Warner Cable Pacific West LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 6th day of February,
2012.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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Exhibit 3.454
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
PACIFIC WEST LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Pacific West LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and
to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Pacific West
LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by M
anager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as
otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the
Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any
other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TIME WARNER CABLE PACIFIC WEST LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Pacific West LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.455
CERTIFICATE OF FORMATION
OF
CABLESERVICE CO LLC
This Certificate of Formation of Cableservice Co LLC (the “
Company
”), dated March 31, 2003, is being duly
executed and filed by MOTH Holdings, Inc., as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6
Del. C
. §18-201,
et seq.).
FIRST. The name of the limited liability company formed hereby is Cableservice Co LLC.
SECOND. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
THIRD. The name and address of the registered agent
for service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:00 AM 03/31/2003
030210501 – 3642030
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date
first above written.
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MOTH HOLDINGS, INC.
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:30 AM 04/07/2003
030227438 - 3642030
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
CABLESERVICE CO LLC
1. The name of the limited liability company
is:
Cableservice Co LLC
2. The
Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company is Time
Warner Cable Services LLC.
3. The Certificate of Amendment shall be effective
upon
filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 1
st
day of April, 2003.
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/s/ David A. Christman
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David A. Christman, Vice President of
Time
Warner Cable Inc., its
Managing Member
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Exhibit 3.456
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
SERVICES LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC Administration LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Services LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Services LLC.
The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend Exhibit B hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve; provided that such certificate of limited liability company interest shall not bear a legend that
causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE SERVICES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TWC ADMINISTRATION LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Services LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC Administration LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.457
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State of Delaware
Secretary of State
Division of Corporations
Delivered 03:19 PM 02/09/2012
FILED 03:11 PM 02/09/2012
SRV 120146656 - 5107611 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
SOUTHEAST LLC
This Certificate of Formation of Time Warner Cable Southeast LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Time Warner Cable Southeast LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 9th day of February,
2012.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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Exhibit 3.458
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
SOUTHEAST LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Southeast LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Time Warner Cable Southeast LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in
the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
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iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
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(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such
person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of
conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s
investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their
affiliates, except as expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under
applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a
Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on
behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or
any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such
Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however
,
that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by
any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer,
or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TIME WARNER CABLE SOUTHEAST LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Southeast LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.459
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:19 PM 05/13/2016
FILED 01:19 PM 05/13/2016
SR 20163187042 - File Number 4955294
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE SPORTS LLC
This Certificate of Formation of Time Warner Cable Sports LLC (the “Company”) is being executed by the undersigned, an authorized
person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
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The name of the limited liability company is Time Warner Cable Sports LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:59 p.m. on May 13, 2016.
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IN
WITNESS WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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Exhibit 3.460
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
SPORTS LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC NewCo LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Sports LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Sports LLC.
The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
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iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
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(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TIME WARNER CABLE SPORTS LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TWC NEWCO LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Sports LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Economic Interest
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Members
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Percentage
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TWC NewCo LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.461
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:18 PM 02/06/2012
FILED 04:56 PM 02/06/2012
SRV 120128469 – 5105761 FILE
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
TEXAS LLC
This Certificate of Formation of Time Warner Cable Texas LLC (the “Company’’) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is Time Warner Cable Texas LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 6th day of February,
2012.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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Exhibit 3.462
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE
TEXAS LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable Texas LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable Texas LLC. The
business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
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(a)
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Management by Manager.
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i) The Member hereby elects Charter Communications,
Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects
otherwise. No additional person may be elected as Manager without the approval of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and
entities). Except as otherwise required by applicable law and as provided below with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority
of, and the business, property and affairs of the Company shall be managed by, or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept
its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however
,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the
Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by
this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or
any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TIME WARNER CABLE TEXAS LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of Time Warner Cable Texas LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Economic Interest
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Members
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Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.463
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State of Delaware
Secretary of State
Division of Corporations
Delivered 06:44 PM 07/27/2012
FILED 06:20 PM 07/27/2012
SRV 120882097 - 5190791 FILE
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CERTIFICATE OF FORMATION
OF
TWC ADMINISTRATION
LLC
This Certificate of Formation of TWC Administration LLC (the “Company”) is being executed by the undersigned for the
purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWC
Administration LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209
Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3.
This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company,
has executed this Certificate of Formation this 27th day of February, 2012.
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/s/ William C. Wesselman
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William C. Wesselman,
Authorized
Person
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Exhibit 3.464
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC ADMINISTRATION
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Administration LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC Administration LLC. The
business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property
or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a
manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as
otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TWC ADMINISTRATION LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of TWC Administration LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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|
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100
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%
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|
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Total
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|
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100
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%
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B-1
Exhibit 3.465
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/17/20
0
2
020246808 – 3515691
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CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (INTERNATIONAL), LLC
This Certificate of Formation of Time Warner Cable Information Services (International),
LLC (the “Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is Time Warner Cable Information Services (International), LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE
19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation
shall be effective at the time of filing with the Delaware Secretary of State.
IN WITNESS WHEREOF, the undersigned, an authorized person
of the Company, has executed this Certificate of Formation this 16th day of April, 2002.
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/s/ Jill A. Clarke
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Jill A. Clarke
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:31 PM 02/01/2007
FILED 07:10 PM 02/01/2007
SRV 070116354 – 3515691 FILE
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE INFORMATION
SERVICES (INTERNATIONAL), LLC
1. The name of the limited liability company is Time Warner Cable Information Services (International),
LLC.
2. The Certificate of Formation of the limited liability company is hereby amended by changing Article 1 to read as follows:
1. The name of the Company is
TWC Communications, LLC.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of this 1st day of February, 2007.
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Time Warner Cable LLC, sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
SVP & Assistant
Secretary
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Exhibit 3.466
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC COMMUNICATIONS,
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC Digital Phone LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Communications, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC Communications, LLC. The
business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend Exhibit B hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TWC COMMUNICATIONS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TWC DIGITAL PHONE LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of TWC Communications, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Economic Interest
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Members
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Percentage
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TWC Digital Phone LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.467
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State of Delaware
Secretary of State
Division of Corporations
Delivered 04:31 PM 04/11/2007
FILED 04:19 PM 04/11/2001
SRV 010424021 – 4332707 FILE
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CERTIFICATE OF FORMATION
OF
TWC DIGITAL PHONE,
LLC
This Certificate of Formation of TWC Digital Phone, LLC (the “Company”) is being executed by the undersigned for the
purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWC
Digital Phone, LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209
Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3.
This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company,
has executed this Certificate of Formation this 11th day of April, 2007.
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/s/ Riina Tohvert
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Riina Tohvert,
Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:46 PM 04/16/2007
FILED 07:30 PM 04/16/2007
SRV 070440130 – 4332707 FILE
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF FORMATION
OF
TWC DIGITAL PHONE, LLC
1. The name of the limited liability company is TWC Digital Phone, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company is TWC Digital Phone LLC.
3. This Certificate of Amendment shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 16
th
day of April, 2007.
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TWC Digital Phone LLC
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By:
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:30 PM 10/29/2013
FILED 07:35 PM 10/29/2013
SRV 131248577 – 4332707 FILE
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STATE OF DELAWARE
CERTIFICATE OF MERGER OF A
DOMESTIC LIMITED LIABILITY COMPANY INTO
A DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Title 6, 18-209 of the Delaware Limited Liability Company Act.
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First:
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The name of the surviving limited liability company is TWC Digital Phone LLC, a Delaware limited liability company.
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Sceond:
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The name of the limited liability company being merged into the surviving limited liability company is Erie Digital Phone, LLC, a Delaware limited liability company.
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Third:
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The agreement of merger has been approved and executed by each of the business entities which is to merge.
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Fourth:
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The merger is to become effective as of 12:05 a.m. on November 1, 2013.
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Fifth:
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An agreement of merger is on file at a place of business of the surviving Delaware limited liability company, and the address thereof is c/o Time Warner Cable Inc., 60 Columbus Circle, New York, NY 10023.
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Sixth:
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A copy of the agreement of merger will be furnished by the surviving limited liability company, on request, without cost, to any member of any domestic limited liability company which is to merge.
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IN WITNESS WHEREOF, said surviving limited liability company has caused this certificate to be signed by an authorized person, this 28
th
day of October, 2013.
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TWC DIGITAL PHONE LLC,
a
Delaware limited liability company
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By:
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/s/ David A. Christman
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David A. Christman
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Senior Vice President and Assistant Secretary
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Exhibit 3.468
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC DIGITAL PHONE
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Digital Phone LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.
, as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC Digital Phone LLC. The
business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the Company,
the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined in
Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or
an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company and
the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the members
or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or
assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner
that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise
provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers taken
in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as
required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity,
(i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager
of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out
of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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TWC DIGITAL PHONE LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of TWC Digital Phone LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.469
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 11:46 AM 05/09/2016
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FILED 11:46 AM 05/09/2016
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SR 20162954212 - File Number 6037251
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CERTIFICATE OF FORMATION
OF
TWC MEDIA BLOCKER
LLC
This Certificate of Formation of TWC Media Blocker LLC (the “Company”) is being executed by the undersigned, an
authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C.
§18-101,
et. seq.).
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1.
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The name of the limited liability company is TWC Media Blocker LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:59 p.m. on May 9, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 9th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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AM 57794431.1
Exhibit 3.470
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC MEDIA BLOCKER
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Media LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Media Blocker LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be TWC Media Blocker LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office
of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of
Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the
Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf
of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on
such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and
liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
8
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or
proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or
was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their
respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective
affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct,
or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such
Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified
Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in
equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such
Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 14.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed
9
by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such limited
liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or provision set
forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC MEDIA BLOCKER LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel
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and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE MEDIA LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel
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and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel
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and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC Media Blocker LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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|
Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
|
|
Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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|
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|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Media LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.471
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State of Delaware
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Secretary of State
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|
|
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Division of Corporations
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Delivered 10:07 AM 05/05/2016
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FILED 10:07 AM 05/05/2016
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SR 20162856507 - File Number 6034153
|
CERTIFICATE OF FORMATION
OF
TWC NEWCO LLC
This Certificate of Formation of TWC NewCo LLC (the “Company”) is being executed by the undersigned, an authorized natural
person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6
Del.C
. § 18-101,
et
.
seq
.).
1. The name of the Company is TWC NewCo LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of
Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Formation this 5
th
day of May, 2016.
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|
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/s/ Martina Davis
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Martina Davis,
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Authorized Person
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State of Delaware
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|
Secretary of State
|
|
|
|
Division of Corporations
|
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|
|
Delivered 03:09 PM 05/20/2016
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|
FILED 03:09 PM 05/20/2016
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|
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SR 20163518375 - File Number 6034153
|
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF FORMATION
OF
TWC NEWCO LLC
TWC NewCo LLC, a Delaware limited liability company (the “
Company
”), pursuant to Section 18-202 of the Delaware Limited
Liability Company Act, 6
Del.
C.
§§ 18-101
et
seq.
, does hereby certify:
That
Article 1 of the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on May 5, 2016 is hereby amended in its entirety to read as follows:
1. The name of the Company is Time Warner Cable, LLC.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this
Certificate of Amendment this 20th day of May, 2016.
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By:
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/s/ Daniel J. Bollinger
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Daniel J. Bollinger
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Authorized Person
|
Exhibit 3.472
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TIME WARNER CABLE,
LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 20, 2016, by and among Charter Communications Operating, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Time Warner Cable, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Time Warner Cable, LLC. The business of the Company shall be conducted under such name or
any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered
office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of
Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement or an
amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the
President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief operating
officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall see that
all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager, Board, or
the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or, if there is
no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and shall be subject
to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties as shall be
assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary, any Vice
President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are intended to
benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other persons may be
admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except as required by
the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by reason of being
a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither a
Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by virtue of this Agreement or
the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and Manager of the Company, and
their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business ventures of every type and
description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity of the
Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B,
in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any
position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as
amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity, a
Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TIME WARNER CABLE, LLC
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By:
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/s/ Daniel J. Bollinger
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Name:
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Daniel J. Bollinger
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Title:
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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MEMBER
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CHARTER COMMUNICATIONS OPERATING, LLC
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By:
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/s/ Daniel J. Bollinger
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Name:
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Daniel J. Bollinger
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Title:
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Daniel J. Bollinger
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Name:
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Daniel J. Bollinger
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Title:
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Time Warner Cable, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 20, 2016
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Members
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Economic Interest
Percentage
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Charter Communications Operating, LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.473
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State of Delaware
Secretary of State
Division of
Corporations
Delivered 11:24 AM 05/17/2016
FILED 11:24 AM 05/17/2016
SR 20163293405 - File Number 5085929
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CERTIFICATE OF FORMATION
OF
TWC NEWS AND LOCAL PROGRAMMING HOLDCO LLC
This Certificate of Formation of TWC News and Local Programming Holdco LLC (the “Company”) is being executed by the undersigned, an
authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
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1.
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The name of the limited liability company is TWC News and Local Programming Holdco LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:58 p.m. on May 17, 2016.
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IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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Exhibit 3.474
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC NEWS AND LOCAL
PROGRAMMING HOLDCO LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC NewCo LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC News and Local Programming Holdco LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be TWC News and Local Programming Holdco LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered
Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent
for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time
to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt
Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a
jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with
respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or
under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers
may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority
of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the
President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members
are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy,
each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in
this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating
distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of
or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member
shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by
unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in
equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such
Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC NEWS AND LOCAL PROGRAMMING HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWC NEWCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC News and Local Programming Holdco LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC NewCo LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.475
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State of Delaware
Secretary of State
Division of Corporations
Delivered 01:41 PM 03/17/2011
FILED 01:37 PM 03/17/2011
SRV 110310387 – 4955297 FILE
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CERTIFICATE OF FORMATION
OF
TWC NEWS AND LOCAL
PROGRAMMING LLC
This Certificate of Formation of TWC News and Local Programming LLC (the “Company”) is being executed by
the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The
name of the Company is TWC News and Local Programming LLC.
2. The address of the registered office of the Company in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 17th day of March,
2011.
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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Exhibit 3.476
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC NEWS AND LOCAL
PROGRAMMING LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC News and Local Programming Holdco LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC News and Local Programming LLC, a Delaware limited liability company
(the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as
expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be TWC News and Local Programming LLC. The business of the Company shall be conducted
under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process
on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the
Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis,
MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company
remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital
Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax
purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be
treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the
Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any
term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or
unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated
accordingly. For purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability
company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC NEWS AND LOCAL PROGRAMMING LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWC NEWS AND LOCAL PROGRAMMING HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC News and Local Programming LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC News and Local Programming Holdco LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.477
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State of Delaware
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Secretary of State
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Division of Corporations
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Delivered 01:41 PM 03/17/2011
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FILED 01:38 PM 03/17/2011
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SRV 110310397 – 4955299 FILE
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CERTIFICATE OF FORMATION
OF
TWC REGIONAL SPORTS
NETWORK I LLC
This Certificate of Formation of TWC Regional Sports Network I LLC (the “Company”) is being executed by the
undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of
the Company is TWC Regional Sports Network I LLC.
2. The address of the registered office of the Company in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 17th day of March,
2011.
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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Exhibit 3.478
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC REGIONAL SPORTS
NETWORK I LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Sports LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Regional Sports Network I LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be TWC Regional Sports Network I LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company
in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one
member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with
respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or
under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit
A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office
at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of
the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President,
with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any)
or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such
duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to
the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other
place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given),
the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager
or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy,
each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
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(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or
due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall
have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the
Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of
the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be
in the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any
position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of 1986, as
amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
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Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of
the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any
such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or
any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under
this Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable
only out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or
in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement,
such Member, Manager, director, officer or any Specified
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Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors
and assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the
Act
. Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
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Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies
except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC REGIONAL SPORTS NETWORK I LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE SPORTS LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC Regional Sports Network I LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
|
|
Executive Vice President, Chief Operating Officer
|
|
|
|
|
Phil Meeks
|
|
Executive Vice President, Business Enterprise Services
|
|
|
|
|
Don Detampel
|
|
Executive Vice President and President, Commercial Services
|
|
|
|
|
Richard R. Dykhouse
|
|
Executive Vice President, General Counsel and Corporate Secretary
|
|
|
|
|
Jonathan Hargis
|
|
Executive Vice President, Chief Marketing Officer
|
|
|
|
|
Thomas Adams
|
|
Executive Vice President, Field Operations
|
|
|
|
|
James Blackley
|
|
Executive Vice President, Engineering and Information Technology
|
|
|
|
|
Catherine C. Bohigian
|
|
Executive Vice President, Government Affairs
|
|
|
|
|
Richard J. DiGeronimo
|
|
Executive Vice President, Product and Strategy
|
|
|
|
|
David Kline
|
|
Executive Vice President, Advertising Sales
|
|
|
|
|
Paul Marchand
|
|
Executive Vice President, Human Resources
|
|
|
|
|
Kathleen Mayo
|
|
Executive Vice President, Customer Operations
|
|
|
|
|
James Nuzzo
|
|
Executive Vice President, Business Planning
|
|
|
|
|
David Scott Weber
|
|
Executive Vice President, Network Operations
|
|
|
|
|
Kevin D. Howard
|
|
Senior Vice President, Finance, Controller, Chief Accounting Officer
|
|
|
|
|
Thomas B. Anema
|
|
Senior Vice President, Commercial Finance
|
|
|
|
|
Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
|
|
|
|
|
Rocky Boler
|
|
Senior Vice President, Customer Care
|
|
|
|
|
Jay E. Carlson
|
|
Senior Vice President, Chief Information Officer
|
|
|
|
|
Kathleen A. Carrington
|
|
Senior Vice President, Corporate Services
|
|
|
|
|
Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
|
|
|
|
Alexander Dudley
|
|
Senior Vice President, Communications
|
|
|
|
|
Lawrence N. Eleftheri
|
|
Senior Vice President, Media Sales
|
|
|
|
|
Adam Falk
|
|
Senior Vice President, State Government Affairs
|
|
|
|
|
Charlotte Field
|
|
Senior Vice President, Application Platform Ops
|
A-1
|
|
|
|
|
Name
|
|
Title
|
|
Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
|
|
|
|
James M. Heneghan
|
|
President, Charter Media
|
|
|
|
|
Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
|
|
|
|
Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
|
|
|
|
|
Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
|
|
|
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
|
|
|
|
Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
|
|
|
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
|
|
Donald Poulter
|
|
Senior Vice President, Commercial Operations
|
|
|
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
|
|
Jodi Robinson
|
|
Senior Vice President, UX Design and Development
|
|
|
|
|
Jay Rolls
|
|
Senior Vice President, Chief Technology Officer
|
|
|
|
|
Gary Schanman
|
|
Senior Vice President, Video Products
|
|
|
|
|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
|
|
|
Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
|
|
Alan Jones
|
|
Vice President, Tax
|
|
|
|
|
Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Sports LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.479
CERTIFICATE OF FORMATION
OF
TWC SECURITY LLC
This Certificate of Formation of TWC Security LLC (the “Company”) is being executed by the undersigned, an authorized
person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq
.).
|
|
1.
|
The name of the limited liability company is TWC Security LLC.
|
|
|
2.
|
The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
|
|
|
3.
|
This Certificate of Formation shall be effective as of 11:58 p.m. on May 17, 2016.
|
IN WITNESS
WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 13th day of May, 2016.
|
|
|
|
|
By:
|
|
/s/ Martina Davis
|
|
|
|
Martina Davis
|
|
|
|
Authorized Person
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of
Corporations
Delivered 11:27 AM 05/17/2016
FILED 11:27 AM 05/17/2016
SR 20163293406 - File Number 4889910
|
Exhibit 3.480
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC SECURITY LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC NewCo LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Security LLC, a Delaware limited liability company (the “
Company
”), the
Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC Security LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office
of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of
Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
3
(9) change the status of the Company from one in which management is vested in the Manager to
one in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company
(
“
Intercompany Indebtedness
”
)
,
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany
Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company.
The officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the
Chairman of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit
A
hereto (as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term.
The President,
Treasurer and Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as
from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall
deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the
Board.
5
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers.
The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time.
The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be
divided into and represented by percentage interests
(
“
Percentage Interests
”
)
,
and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic
rights set forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage)
shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(
“
Adjusted Capital Account Balance
”
)
.
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the
assets of the Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such
Member’s Adjusted Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a
distribution to the Members on account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage
Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to
dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims
against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability
company interest in the Company to any other person without the prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a
portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall
amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or
substitute Members to the Company shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall
agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded
entity for U.S. federal income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its
owner and its activities be treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal
income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to
subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
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performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best
interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the
property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as
expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement.
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The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“
Default
Rule
”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC SECURITY LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWC NEWCO LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC Security LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Mike Roudi
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President
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David A. Christman
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Senior Vice President
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Matthew Siegel
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Senior Vice President & Treasurer
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Meredith Garwood
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Assistant Treasurer
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the titles of senior
vice president or below shall remain as officers of the Company in such capacities.
A-1
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC NewCo LLC
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100
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%
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Total
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100
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%
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Exhibit 3.481
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “TWC SEE HOLDCO LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING
DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY-FIRST DAY OF AUGUST, A.D. 2006, AT 6:37 O’CLOCK
P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED
LIABILITY COMPANY, “TWC SEE HOLDCO LLC”.
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/s/ Jeffrey W. Bullock
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Jeffrey W. Bullock, Secretary of State
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4208286 8100H
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Authentication: 202957443
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SR# 20165704241
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Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:11 PM 08/21/2006
FILED 06:37 PM 08/21/2006
SRV 060780552 - 4208286 FILE
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CERTIFICATE OF FORMATION
OF
TWC SEE HOLDCO LLC
This Certificate of Formation of TWC SEE Holdco LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWC SEE Holdco
LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 21st day of August, 2006.
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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Exhibit 3.482
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC SEE HOLDCO LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this
“
Agreement
”
)
is entered into as of May 18, 2016, by and among Time Warner Cable Enterprises LLC, a Delaware limited liability company (the
“
Member
”),
as the sole member of TWC
SEE Holdco LLC, a Delaware limited liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State
of the State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited
Liability Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC SEE Holdco LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office
of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of
Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
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iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
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(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any
other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC SEE HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE ENTERPRISES LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC SEE Holdco LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Enterprises LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.483
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE
AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “TWC WIRELESS LLC” AS RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING
DOCUMENTS HAVE BEEN CERTIFIED:
CERTIFICATE OF FORMATION, FILED THE TWENTY-THIRD DAY OF AUGUST, A.D. 2005, AT 4:12 O’CLOCK
P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED
LIABILITY COMPANY, “TWC WIRELESS LLC”.
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/s/ Jeffrey W. Bullock
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Jeffrey W. Bullock, Secretary of State
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4019697 8100H
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Authentication: 202957449
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SR# 20165704267
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Date: 09-08-16
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You may verify this certificate online at
corp.delaware.gov/authver.shtml
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State of Delaware
Secretary of State
Division of Corporations
Delivered 04:36 PM 08/23/2005
FILED 04:12 PM 08/23/2005
SRV 050695370 - 4019697 FILE
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CERTIFICATE OF FORMATION
OF
TWC WIRELESS LLC
This Certificate of Formation of TWC Wireless LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWC Wireless
LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 23rd day of August, 2005.
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Time Warner Entertainment Company, L.P.,
Sole Member,
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By:
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/s/ David A. Christman
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David A. Christman,
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Vice President & Asst. Secretary
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Exhibit 3.484
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC WIRELESS LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC Digital Phone LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWC Wireless LLC, a Delaware limited liability company (the “
Company
”),
the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC Wireless LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office
of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of
Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any
other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
TWC WIRELESS LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MEMBER
TWC DIGITAL PHONE LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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MANAGER
Accepting its appointment as the Company’s Manager
CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice President, Deputy General Counsel and Assistant Corporate
Secretary
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[Signature Page to LLC Agreement of TWC Wireless LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As
of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC Digital Phone LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.485
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:53 PM 04/19/2007
FILED 07:52 PM 04/19/2007
SRV 070456960 – 4337674 FILE
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CERTIFICATE OF FORMATION
OF
TWC/CHARTER DALLAS CABLE
ADVERTISING, LLC
The undersigned has executed and filed this Certificate of Formation as an authorized person in order to form
TWC/Charter Dallas Cable Advertising, LLC (the “Company”) as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act, and in connection therewith does hereby certify as follows:
1.
Name
: The name of the limited liability company (the “Company”) is TWC/Charter Dallas Cable Advertising, LLC.
2.
Registered Office; Registered Agent
: The address of the Company’s registered office in the State of Delaware is 1209 Orange
Street, Wilmington, County of New Castle, Delaware 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
Date: April 19, 2007
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/s/ Stacey m.
Held
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Printed Name: Stacey Held
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3699427_1.DOC
Exhibit 3.486
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC/CHARTER DALLAS
CABLE ADVERTISING, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Media LLC, a Delaware limited liability company and Charter Communications Operating, LLC, a Delaware limited liability company (each a “
Member
” and collectively, the
“
Members
”), as all of the members of TWC/Charter Dallas Cable Advertising, LLC, a Delaware limited liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly
known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability
company pursuant to a Certificate of Formation filed with the Secretary of State of the State of Delaware; and
The Members desire to
continue the Company as a limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior
limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State
of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be TWC/Charter Dallas Cable
Advertising, LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation
Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO
63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary
of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager
shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is
required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in
a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only
one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each
Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement
(including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval
of a simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below
with respect to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by,
or under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which
it is otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the
Company and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the
best interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities
and obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company controlled by or
under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or (iv) indebtedness necessary to
finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The
officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman
of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman
of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold
office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the
Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a
majority of the directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board
or the President, with or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the
Manager, Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board
(if any) or, if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the
President, and shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall
perform such duties as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the
President to the contrary, any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
. The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the
Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall
show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at Board meetings, the number of Votes present or represented at Members’ meetings, and the
proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be assisted in his or her duties by any Assistant Secretary who shall have the same powers of the
Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities
and shall keep or cause to be kept full and accurate accounts of receipts and
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disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in
depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise
such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the
extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of
the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including
this Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or
order of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty
otherwise existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted
or prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall
not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
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SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set
forth in this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall
be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such
amounts in cash and other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective
Economic Interests. Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“
Adjusted Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the
Company remaining after payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted
Capital Account Balance, a Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on
account of their interest in the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs
giving rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
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Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties
and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to
minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one
Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior
written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to
another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is intended to be treated as a partnership for U.S. federal
income tax purposes. So long as the Company has two or more partners for U.S. federal income tax purposes, it is intended that the Company be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any position
or make any election, in a tax return or otherwise, inconsistent therewith. In the event that the Company has only one owner for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company shall be
disregarded as an entity separate from its owner and its activities be treated as a division of such owner.
SECTION 14.
Exculpation
and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the
Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall
engage, or shall have engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action
against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or
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omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified
Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look
solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member
shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of
care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any
threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made
a party by reason of the fact that such person is or was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of
the Company, officers of the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in
connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified
for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or
public accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager,
director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent
constituted bad faith, willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification
provided under this Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance on
the Agreement
. To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any
Member or other person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other
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person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a
Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or
officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
. Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to
construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated
in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC/CHARTER DALLAS CABLE ADVERTISING, LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBERS
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TIME WARNER CABLE MEDIA LLC
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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CHARTER COMMUNICATIONS OPERATING, LLC
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By:
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Charter Communications, Inc., its Sole Manager
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name:
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Thomas E. Proost
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Title:
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC/Charter Dallas Cable Advertising, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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|
Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
|
|
Senior Vice President, Financial Planning and Analysis
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Rocky Boler
|
|
Senior Vice President, Customer Care
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Jay E. Carlson
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|
Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
|
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Senior Vice President, Corporate Services
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Thomas M. Degnan
|
|
Senior Vice President, Finance and Corporate Treasurer
|
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Alexander Dudley
|
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
|
|
Title
|
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|
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Charles Fisher
|
|
Senior Vice President, Corporate Finance
|
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James M. Heneghan
|
|
President, Charter Media
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Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
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Robert Klippel
|
|
Senior Vice President, Advanced Advertising Products
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|
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Joseph Leonard
|
|
Senior Vice President, Marketing and Creative Strategy
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|
|
|
|
James F. McGann, Jr.
|
|
Senior Vice President, Charter Business
|
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|
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|
Frederick J Pappalardo
|
|
Senior Vice President, Business Planning
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|
|
|
Abigail T. Pfeiffer
|
|
Senior Vice President, Human Resources
|
|
|
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Donald Poulter
|
|
Senior Vice President, Commercial Operations
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|
|
|
|
Thomas E. Proost
|
|
Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
|
|
|
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Jodi Robinson
|
|
Senior Vice President, UX Design and Development
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|
|
|
|
Jay Rolls
|
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Senior Vice President, Chief Technology Officer
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|
|
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Gary Schanman
|
|
Senior Vice President, Video Products
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|
Ernest Richard Schultz
|
|
Senior Vice President, Sales and Retention
|
|
|
|
|
Allan Singer
|
|
Senior Vice President, Programming
|
|
|
|
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Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
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Alan Jones
|
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Vice President, Tax
|
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|
|
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Meredith Garwood
|
|
Group Vice President, Tax
|
|
|
|
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David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
|
Senior Vice President & Controller
|
|
|
|
|
Matthew Siegel
|
|
Senior Vice President
|
|
|
|
|
Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
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Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Media LLC
|
|
|
50.00
|
%
|
|
|
|
|
Charter Communications Operating, LLC
|
|
|
50.00
|
%
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100.00
|
%
|
B-1
Exhibit 3.487
CERTIFICATE OF FORMATION
OF
TWC/CHARTER GREEN BAY
CABLE ADVERTISING, LLC
The undersigned has executed and filed this Certificate of Formation as an authorized person in order to form
TWC/Charter Green Bay Cable Advertising, LLC (the “Company”) as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act, and in connection therewith does hereby certify as follows:
1.
Name
: The name of the limited liability company (the “Company”) is TWC/Charter Green Bay Cable Advertising, LLC.
2.
Registered Office; Registered Agent
: The address of the Company’s registered office in the State of Delaware is 1209 Orange
Street, Wilmington, County of New Castle, Delaware 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
Date: November 30, 2005
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/s/ Stacey M. Held
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|
Printed Name: Stacey M. Held
|
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Authorized Person
|
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|
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:21 PM 11/30/2005
FILED 06:16 PM 11/30/2005
SRV 050973607 - 4068884 FILE
|
Exhibit 3.488
F
INAL
F
IRST
A
MENDED
AND
R
ESTATED
L
IMITED
L
IABILITY
C
OMPANY
A
GREEMENT
OF
TWC/C
HARTER
G
REEN
B
AY
C
ABLE
A
DVERTISING
, LLC
E
FFECTIVE
D
ATE
: O
CTOBER
26, 2009
T
ABLE
OF
C
ONTENTS
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|
|
|
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|
|
1.
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|
Formation Of Limited Liability Company; Construction
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|
|
2
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|
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|
|
1.1 Formation
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|
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2
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|
2.
|
|
Organizational Matters
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|
|
2
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|
2.1 Name
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|
|
2
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2.2 Filings
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|
|
2
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|
|
|
|
2.3 Registered Office and Agent
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|
|
2
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|
2.4 Principal Office
|
|
|
2
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|
2.5 Company Purposes
|
|
|
2
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|
2.6 Term
|
|
|
3
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3.
|
|
Definitions
|
|
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3
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4.
|
|
Capital Contributions
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5
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4.1 Class A Members
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|
|
5
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|
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|
4.2 Class B Members
|
|
|
5
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|
|
|
|
4.3 Interest; Returns of Capital
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|
|
5
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|
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|
4.4 Loans From Members
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|
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5
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5.
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|
Profits And Losses
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|
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5
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|
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6.
|
|
Payments and Distributions to Members
|
|
|
5
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|
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|
|
6.1 Payment Definitions
|
|
|
5
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|
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|
|
6.2 Payment of Purchase Prices
|
|
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5
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|
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|
6.3 Distributions
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6
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7.
|
|
Management Of The Company
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|
|
7
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7.1 Managing Member
|
|
|
7
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7.2 Personnel
|
|
|
7
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7.3 NCC as National Representative
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|
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8
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7.4 Control Vested in Managing Member as Manager
|
|
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9
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|
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8.
|
|
Business of The Company
|
|
|
9
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|
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|
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|
|
8.1 Class B Member Agreements
|
|
|
9
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|
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8.2 Systems
|
|
|
9
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|
|
|
|
8.3 Sale of Advertising Availabilities to the Company
|
|
|
10
|
|
|
|
|
8.4 Resale and Pricing of Advertising Availabilities by the Company
|
|
|
10
|
|
|
|
|
8.5 Unsold and Reserved Advertising Availabilities
|
|
|
11
|
|
|
|
|
8.6 Programming Decisions
|
|
|
11
|
|
i
|
|
|
|
|
|
|
|
|
|
|
8.7 Cooperation with Company Business
|
|
|
11
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|
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|
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|
|
9.
|
|
Other Activities; Conflicts Of Interest
|
|
|
11
|
|
|
|
|
|
|
|
|
9.1 Other Activities of Members
|
|
|
11
|
|
|
|
|
9.2 Conflicts of Interest
|
|
|
12
|
|
|
|
|
|
|
10.
|
|
Financial Accounting And Tax Matters
|
|
|
12
|
|
|
|
|
|
|
|
|
10.1 Fiscal Year
|
|
|
12
|
|
|
|
|
10.2 Capital Accounts
|
|
|
12
|
|
|
|
|
10.3 Accounting Method; Books and Records
|
|
|
12
|
|
|
|
|
10.4 General Tax Matters
|
|
|
12
|
|
|
|
|
10.5 Tax Matters Partner
|
|
|
13
|
|
|
|
|
10.6 Banking
|
|
|
13
|
|
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|
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|
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11.
|
|
Additional Members
|
|
|
13
|
|
|
|
|
|
|
12.
|
|
Withdrawal
|
|
|
14
|
|
|
|
|
|
|
|
|
12.1 Events of Withdrawal
|
|
|
14
|
|
|
|
|
12.2 Rights and Obligations After Withdrawal
|
|
|
15
|
|
|
|
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|
|
13.
|
|
Transfers of Company Interests; Conversion of Membership
|
|
|
16
|
|
|
|
|
|
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|
|
13.1 Restrictions on Transfer
|
|
|
16
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|
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|
|
13.2 Permitted Transfers by Class B Members
|
|
|
16
|
|
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|
13.3 Conditions to Transfer
|
|
|
17
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14.
|
|
Dissolution and Termination
|
|
|
17
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|
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|
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|
14.1 Unilateral Acts Prohibited
|
|
|
17
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|
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|
14.2 Events of Dissolution
|
|
|
17
|
|
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|
14.3 Winding Up, Liquidation and Distribution of Assets
|
|
|
17
|
|
|
|
|
|
|
15.
|
|
Representations And Warranties
|
|
|
18
|
|
|
|
|
|
|
|
|
15.1 Organization
|
|
|
18
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|
|
15.2 Authority
|
|
|
18
|
|
|
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|
15.3 No Conflict
|
|
|
18
|
|
|
|
|
15.4 Charter Ordinary Course Representation and Covenant
|
|
|
19
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|
|
|
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|
16.
|
|
Notices
|
|
|
19
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|
|
17.
|
|
Miscellaneous
|
|
|
19
|
|
|
|
|
|
|
|
|
17.1 Indemnification; Limitation on Liability of Class A Members
|
|
|
19
|
|
|
|
|
17.2 No Recourse Against Others
|
|
|
20
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
17.3 Other Matters Concerning the Class A Members
|
|
|
20
|
|
|
|
|
17.4 Confidentiality and Publicity
|
|
|
20
|
|
|
|
|
17.5 Liability For Unauthorized Acts
|
|
|
21
|
|
|
|
|
17.6 Franchise Fees
|
|
|
21
|
|
|
|
|
17.7 Organizational Expenses
|
|
|
21
|
|
|
|
|
17.8 Amendments
|
|
|
21
|
|
|
|
|
17.9 Force Majeure
|
|
|
22
|
|
|
|
|
17.10 Binding and Entire Agreement
|
|
|
22
|
|
|
|
|
17.11 Governing Law
|
|
|
22
|
|
|
|
|
17.12 Severability
|
|
|
22
|
|
|
|
|
17.13 Counterparts
|
|
|
22
|
|
|
|
|
17.14 Ownership of Company Property
|
|
|
22
|
|
|
|
|
17.15 No Third-Party Beneficiaries
|
|
|
22
|
|
EXHIBITS
|
|
|
|
|
Exhibit 2.5
|
|
Advertiser Categories;
|
|
|
|
Definition of Advertising
|
|
|
|
Availabilities
|
|
|
|
|
Exhibit 8.2
|
|
Class A Member Systems,
|
|
|
|
Services and Subscribers
|
|
|
|
|
Exhibit 16
|
|
Member Addresses
|
iii
L
IMITED
L
IABILITY
C
OMPANY
A
GREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) is effective as of October 26, 2009
(the “Amended and Restated Effective Date”), by and between Charter Communications Holding Company, LLC, a Delaware limited liability company (the “Charter Member”), and Time Warner Entertainment Company, L.P., a Delaware limited
partnership (“TWE”). TWE, together with any other Persons who become parties to this Agreement as Class A Members in the manner provided herein, are hereinafter collectively referred to as the “Class A Members” and each,
individually, as a “Class A Member”. The Charter Member, together with any other Persons who become parties to this Agreement as Class B Members in the manner provided herein, are hereinafter collectively referred to as the “Class B
Members” and each, individually, as a “Class B Member”. The Class A Members and the Class B Members are hereinafter collectively referred to as the “Members” and each, individually, as a “Member”. Certain
capitalized terms are defined in Section 3 of this Agreement.
R
ECITALS
A. Each of the Members owns and/or operates one or more cable television systems in the Green Bay, Wisconsin Designated Market Area (the
“DMA”).
B. Each Member is engaged in the sale of advertising availabilities on the cable television system or systems that it
owns or operates.
C. Numerous advertisers desire to place ads with media that will provide coverage over the entire DMA and, in certain
cases, specified zones therein.
D. Because no Member alone can provide the type of coverage desired by advertisers across the DMA, these
advertisers currently are serviced primarily by media other than cable television. These logistical difficulties have inhibited the sale of advertising availabilities by the Members and other cable television operators in the DMA. Marketing and
selling advertising availabilities through the Company will achieve economies of scale and lower costs for the Members and also will achieve similar efficiencies and product improvement for advertisers who desire to place advertising within the DMA.
E. The parties have organized a limited liability company (the “Company”) governed by the provisions of the Delaware Limited
Liability Company Act, as amended and in effect from time to time (the “Act”) in order to create a mechanism for the more efficient and coordinated sale of advertising availabilities and the placement of advertisements within programming
distributed in the DMA, so as to be able to offer and provide greater coverage within the DMA.
A
GREEMENT
|
1.
|
Formation Of Limited Liability Company; Construction
.
|
1.1
Formation
. The Class A
Member previously caused the Company to be formed pursuant to the Act. The Company and the Members hereby forever discharge the organizer (the individual executing the Company’s Certificate of Formation) of the Company, and the organizer shall
be indemnified by the Company and the Members from and against any expense or liability incurred by the organizer by reason of having been the organizer of the Company.
|
2.
|
Organizational Matters
.
|
2.1
Name
. The name of the Company shall be TWC/Charter
Green Bay Cable Advertising, LLC.
2.2
Filings
. The Class A Member has caused a Certificate of Formation to be executed and filed
with the Delaware Secretary of State in accordance with the Act. The Class A Member also shall execute and file on behalf of the Company such amendments to the Certificate of Formation, and such trade name affidavits, additional instruments and
amendments thereto, as may from time to time be necessary or appropriate to carry out this Agreement and enable the Company to conduct its business in compliance with applicable laws.
2.3
Registered Office and Agent
. The registered office of the Company, and the office required to be maintained by the Company in the
State of Delaware pursuant to the Act, shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, in the County of New Castle; the registered agent for the Company at such address shall be The Corporation Trust
Company. The Managing Member may designate a different registered office or agent for the Company.
2.4
Principal Office
. The
principal office of the Company shall be located at the office of the Managing Member, or at such other location as the Managing Member from time to time may determine in its discretion.
2.5
Company Purposes
. The purposes of the Company shall be to own, manage and operate an advertising interconnect business (the
“Interconnect Business”) which shall:
(a) market and sell to the categories of advertisers set forth on
Exhibit 2.5
to
this Agreement who desire to advertise on one or more of the multichannel video content distribution systems owned, operated or represented by the Members of their Affiliates within the DMA (each a “System” and, collectively, the
“Systems”), those Advertising Availabilities (as defined on
Exhibit 2.5
to this Agreement) made available to the Systems for local insertion, or ingestion, as the case may be, of commercial advertising by certain programming
services and/or by or on certain other channels distributed on one or more of the Systems, including without limitation all virtual or
2
video-on-demand channels and interactive digital or high definition television channels or services on which a Member offers Advertising Availabilities to any third party (each a
“Service” and, collectively, the “Services”), and to conduct such other activities as are permitted by this Agreement; and
(b) engage in any and all business activities necessary or incidental to the purposes described in Section 2.5(a) above and permitted by this
Agreement.
2.6
Term
. The Company commenced operations effective as of December 29, 2008. The effective date of this Agreement is
the Amended and Restated Effective Date. The Company shall continue until December 29, 2018, unless sooner terminated as provided herein.
|
3.
|
Definitions
. For purposes of this Agreement:
|
“Affiliate” means any Person
which, directly or indirectly, Controls, is Controlled by, or is under common Control with, one or more of the Members and, (a) with respect to the Charter Member includes any entity which is directly or indirectly owned and Controlled by Charter
Communications Holding Company, LLC, and (b) with respect to TWE, includes but is not limited to Time Warner Cable Inc. (“TWC”), Time Warner NY Cable LLC (“TWNY”), Time Warner Entertainment-Advance/Newhouse Partnership
(“TWEAN”); or any other corporation, partnership, joint venture, trust, joint stock company or other entity as to which any one or more of TWC, TWE, TWNY or TWEAN owns or controls at least twenty-five percent (25%) of the voting securities
of such entity. For the avoidance of doubt, (a) any Entity which has as its primary business purpose the sale of Advertising Availabilities on behalf of its members and with respect to which TWC or an Affiliate of TWC serves as the sole managing
member, general partner or other equivalent management function, shall constitute an Affiliate of TWE for purposes of this Agreement, and (b) notwithstanding anything else to the contrary in this Agreement, neither National Cable Communications LLC
(“NCC”) nor Canoe Ventures LLC (“Canoe”) shall be deemed an Affiliate of TWE for purposes of this Agreement or the Charter Class B Member Agreement.
“Control” means the possession by one or more Persons, directly or indirectly, of the power to direct or cause the direction of the
advertising or media sales operations specifically, or management and policy in general, of any Entity or of any Systems owned by such Entity, whether through the ownership of voting securities or by any right to vote the same by contract or
otherwise, or the ownership, directly or indirectly, of 50% or more of the equity or profits interests in such Entity, or through contractual rights under any contract, representation agreement, interconnect agreement or other similar advertising
sales agreement entered into with respect to such Entity or System.
“Entity” means any corporation, partnership, limited
liability company, trust, or other association or entity.
“Person” means any individual natural person or Entity.
3
“Subscriber” means (a) individual residential dwelling units in multiple-dwelling unit
residential buildings that receive Services from a System on a bulk-billed basis, plus (b) individually-billed residential subscribers, in each case that are actually receiving Services from a System without regard to the number of outlets to which
such Services are provided, and plus (c) individually-billed commercial subscribers, in each case that are actually receiving Services from a System, without regard to the number of outlets to which such Services are provided.
In addition, the terms set forth below shall have the meanings ascribed in the Sections indicated:
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Definitions
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Sections
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Act
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Recitals
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Advertising Availabilities
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Exhibit 2.5
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Affiliate
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3
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Agreement
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Introduction
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Amended and Restated Effective Date
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Introduction
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Capital Asset Receipt
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6.1
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Class A Member
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Introduction
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Class B Member
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Introduction
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Class B Member Agreement
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8.1
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Class B Member Purchase Price
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8.1
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Class B Member Term
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8.1
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Code
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6.1
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Company
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Recitals
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Control
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3
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DMA
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Recitals
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Entity
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3
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Event of Withdrawal
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12.1
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Events of Dissolution
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14.2
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Former Member
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12.2
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General Manager
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7.2
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Interconnect Business
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2.5
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Liquidating Member
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14.3
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Managing Member
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7.1
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Member
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Introduction
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Operating Cash Flow
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6.1
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Person
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3
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Prime Rate
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12.1
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Service(s)
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2.5
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Successor
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12.1
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Systems
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2.5
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Third Party Rep.
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7.3
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TMP
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10.5
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Transfer
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13.1
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Treasury Regulations
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10.2
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VOD Availabilities
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Exhibit 2.5
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4.
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Capital Contributions
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4.1
Class A Members
. The Managing Member may from time to
time make additional capital contributions to the Company in such amounts and at such times as it determines to be reasonably necessary to fund the operations and capital requirements of the Company and to provide for timely payment of the
Company’s obligations.
4.2
Class B Members
. The Class B Member shall have no obligation to make or be responsible for any
capital contributions to the Company.
4.3
Interest; Returns of Capital
. The Members shall not receive interest on or with respect
to their capital contributions or the amount of their capital accounts. Returns of capital shall be made only as provided for herein or as otherwise approved by the Managing Member.
4.4
Loans From Members
. The Company may borrow money from the Class A Member at such times and upon such terms as may be approved by
the Managing Member.
5.
Profits And Losses
. Unless otherwise expressly provided herein, the profits and losses of the Company, and each item of
income, gain, loss, deduction or credit of the Company for income tax purposes for any fiscal year shall be allocated to the Class A Member.
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6.
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Payments and Distributions to Members
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6.1
Payment Definitions
. The following
terms shall have the following meanings:
(a) “Capital Asset Receipt” means a receipt of the Company arising from the sale or
exchange of an asset described in either of Sections 1221 or 1231 of the United States Internal Revenue Code of 1986, as amended (the “Code”).
(b) “Operating Cash Flow” means the sum of the Company’s operating income plus its investment income, as determined in
accordance with generally accepted accounting principles, before depreciation, amortization and bad debt expense, and after reduction for Class A Member Purchase Prices, Class B Member Purchase Prices and working capital, without taking into account
any Capital Asset Receipt.
6.2
Payment of Purchase Prices
.
(a)
Payment of Class A Member Purchase Price
. As consideration for the sale of Advertising Availabilities to the Company by the Class A
Member, within 30 days after the end of each broadcast month during the term of the Company, the
5
Company shall pay to the Class A Member such amount of the net advertising revenue attributable to the sale of, or placement of commercial advertising on, the Class A Member’s Advertising
Availabilities (the “Class A Member Purchase Price”) as the Managing Member in its discretion shall determine.
(b)
Payment
of Class B Member Purchase Price
. As consideration for the sale of Advertising Availabilities to the Company by the Class B Member, the Company shall pay to the Class B Member the Class B Member Purchase Price attributable to the sale of, or
placement of commercial advertising on, the Class B Member’s Advertising Availabilities as set forth in the Class B Member Agreement between the Company and the Class B Member.
(c)
Revenue Attribution
. Attribution of advertising revenues to a Member shall be determined based upon (i) the number of such
Member’s Subscribers to the Service on the Systems (or portions thereof) on which the related commercial advertising was distributed, divided by (ii) the total number of all Members’ Subscribers to the Service on the Systems (or portions
thereof) on which the related commercial advertising was distributed.
6.3
Distributions
.
(a) O
perating Cash Flow
. Within 90 days after the end of each Company fiscal year, the Company shall distribute to the Class A Member
all or any portion of any remaining Operating Cash Flow for such fiscal year as determined by the Managing Member.
(b)
Capital Asset
Receipts
. All Capital Asset Receipts shall be distributed to the Class A Member at the discretion, and in the manner determined by, the Managing Member.
(c)
Liquidation
. Proceeds from the liquidation of the assets of the Company upon dissolution shall be distributed to the Class A Member
in accordance with Section 14.3(b) of this Agreement. Proceeds from the sale (or other conversion into cash) of all or substantially all of the Company property shall be distributed to the Class A Member in accordance with Section 14.3(b) of this
Agreement as if such proceeds arose from the liquidation of the assets of the Company.
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7.
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Management Of The Company
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7.1
Managing Member
. TWE is hereby appointed the
managing member of the Company (the “Managing Member”). The Managing Member shall be responsible for management and operation of the business of the Company in accordance with this Agreement. Subject to the limitations expressly imposed by
this Agreement, the Managing Member shall have full power and authority to take all actions and execute all instruments or other documents necessary or appropriate to the conduct of the Company’s business, including but not limited to:
(a) Engaging or terminating the services of one or more management companies to perform sales, billing, trafficking, commercial production or
other management services for the Company (any renewal or extension or an agreement with such a party for any such services constituting an engagement of that party), or modifying any agreement with such a party for any such services;
(b) Selling or otherwise disposing of any Company property;
(c) Mortgaging, pledging, or granting a security interest in any property of the Company (excluding Advertising Availabilities);
(d) Incurring or refinancing any indebtedness for money borrowed by the Company, whether secured or unsecured (including any indebtedness for
money borrowed from a Member);
(e) Engaging or terminating the services of an advertising sales representative firm to sell Advertising
Availabilities on behalf of the Company (any renewal or extension of an agreement with an advertising sales representative constituting an engagement of that sales representative), or any modification of any agreement with such an advertising
representative;
(f) Engaging or terminating the engagement of a General Manager or other staff for the Company;
(g) Commencing, compromising or settling any claim against or inuring to the benefit of the Company; provided, however, that no such
compromise or settlement that expressly imposes any liability or obligation on, or requires an admission of, the Class B Member shall be entered into without the prior written consent of the Class B Member;
(h) Opening, maintaining and managing in the name and on behalf of the Company, accounts in such banks, savings and loan associations and/or
other financial institutions as the Managing Member may select, which Accounts may be interest bearing or non-interest bearing, as the Managing Member deems appropriate in light of the operating needs of the Interconnect Business;
(i) Appointing or removing any public accounting firm, law firm or consultant used by the Company (which may include a firm used by any of the
Class A Members); and
(j) Matters specified elsewhere in this Agreement.
7.2
Personnel
.
(a)
General Manager
. The Managing Member may employ a general manager who shall be the individual primarily responsible for supervising the conduct of the day-to-day operations of the Company, on such terms and for such compensation
7
as the Managing Member determines (the “General Manager”). The responsibility and authority of the General Manager shall include at least the following:
(i) the performance of all actions reasonably necessary to supervise and manage the operation of the Interconnect Business, including but not
limited to the purchase of equipment and services, the hiring and supervision of personnel, review and approval of disbursements, and the preparation and maintenance of the books and records of the Interconnect Business,
(ii) making all decisions relating to the sale of the Company’s Advertising Availabilities, including:
(A) formulation of rate cards for Advertising Availabilities;
(B) the exact Advertising Availabilities that will be resold by the Company out of all Advertising Availabilities owned by it;
(C) the terms of sales of Advertising Availabilities (including “partial buys” and discounts, packages and promotional sales) and
of any trade or barter transactions involving Advertising Availabilities; and
(iii) subject to the approval of any Members whose Systems
will be located in whole or in part within such advertising zones, the boundaries of any advertising zones within the Interconnect Business; and
(iv) the preparation of such other reports or documents and the performance of such other actions or responsibilities as the Managing Member
from time to time may request.
(b)
Furnishing of Employees
. The Managing Member shall have the authority to establish all
guidelines pertaining to the employment of employees furnished to the Company, including guidelines pertaining to the term of office or employment, resignation, removal and compensation. The Managing Member shall furnish to the Company the services
of individuals (the “Personnel”) to conduct the business of the Company. All Personnel shall be employees of the Managing Member or its affiliates and not of the Company. The Managing Member shall recruit, select, employ, promote,
terminate, supervise, direct, train and assign the duties of all Personnel, and may change or replace any such individual at any time, in each case in its sole discretion. Nothing in this Section 7.2(b) or elsewhere in this Agreement shall be deemed
to make any of the Personnel third party beneficiaries of this Agreement.
7.3
NCC as National Representative.
In addition to
retention of a General Manager and the Personnel by or on behalf of the Company, the Managing Member may retain the services of National Cable Communications, LLC (“NCC”) to handle national spot sales for the Company on such terms and
conditions, and for such commissions or management fees, as the Managing Member determines are appropriate.
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7.4
Control Vested in Managing Member as Manager
. The Managing Member shall constitute a
Manager of the Company (as such term is defined in Section 18- 101(10) of the Act), and the business and affairs of the Company shall be carried on, controlled and managed by the Managing Member in its capacity as Manager. Subject to the terms and
conditions of this Agreement, the Managing Member as Manager shall have full, exclusive and complete control and discretion with respect to all matters relating to the business and affairs of the Company. All management rights of the Managing Member
set forth in this Agreement shall be exercised in the Managing Member’s capacity as Manager, rather than as a Member, of the Company. No Class B Member shall have any power to act for the Company or to control or manage the business or affairs
of the Company.
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8.
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Business of The Company
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8.1
Class B Member Agreements
. Concurrently with the
execution of this Agreement, the Company and the Charter Member also shall execute and deliver the First Amended and Restated Charter Green Bay Class B Member Agreement (the “Amended Charter Class B Member Agreement”) which sets forth the
following information:
(a) All Systems of the Charter Member on which the Charter Member is selling Advertising Availabilities to the
Company as of the Amended and Restated Effective Date;
(b) All Services carried on the Charter Member Systems on which the Charter Member
is selling Advertising Availabilities to the Company as of the Amended and Restated Effective Date;
(c) The percentage of Advertising
Availabilities on such Services sold to the Company by the Charter Member in accordance with Section 8.3;
(d) The number of Subscribers
to each of the Services as of the Amended and Restated Effective Date;
(e) The period of time during which the Charter Member agrees to
be a Class B Member (the “Class B Member Term”); and
(f) The amount, which shall be calculated as a percentage of Net
Advertising Revenue (as defined in the Charter Class B Member Agreement), that the Company will pay to the Charter Member as the purchase price for the Charter Member’s Advertising Availabilities sold to the Company in accordance with Section
8.3 during the Class B Member Term (the “Class B Member Purchase Price”).
8.2
Systems
. The Systems of the Class A Member
are as set forth on
Exhibit 8.2
to this Agreement (the “TWE Systems”). The Systems of the Class B Member are described on
Exhibit 3
to the Charter Class B Member Agreement. The Members agree that any System located within the
DMA which, after the Amended and Restated
9
Effective Date, (a) is acquired by such Member or an Affiliate of such Member, (b) becomes subject to a contract pursuant to which a Member or an Affiliate of a Member represents such system for
purposes of national, regional and/or local advertising sales, or (c) becomes included in the DMA as a result of an expansion of the DMA, shall, subject to bona fide contractual commitments assumed as part of any such acquisition referenced in the
preceding clause (a), be added as a System of the applicable Member within 90 days following the effective date of such contract, DMA expansion or acquisition (or upon the expiration of the applicable contractual commitment, if later). Unless the
Class B Member withdraws from the Company as permitted by this Agreement, the Class B Member may remove Systems from the Interconnect Business only (i) with the written approval of the Managing Member, or (ii) pursuant to the terms of Article 13;
provided, however, that third party Systems represented by a Member or an Affiliate of a Member may be removed from the Interconnect Business without penalty upon expiration or termination of the applicable contract pursuant to which such Member or
Affiliate of a Member represents such third party System.
8.3
Sale of Advertising Availabilities to the Company
.
(a) The initial Services on which the Class A Member is selling Advertising Availabilities to the Company (the “TWE Insertable
Services”) and the number of Subscribers thereto as of the first day of the 2010 broadcast year are as set forth on
Exhibit 8.2
to this Agreement. By the execution and delivery of this Agreement, the Class A Member hereby sells and
conveys to the Company, effective as of the Amended and Restated Effective Date, such portion (which shall not be less than 15%) of its Advertising Availabilities on the TWE Insertable Services as the Class A Member may determine from time to time,
which portion shall be distributed across all day-parts, programs, events and specials as determined by the Managing Member from time to time.
(b) By the execution and delivery of this Agreement and the Charter Class B Member Agreement, the Class B Member sells and conveys to the
Company for the applicable Class B Purchase Price, a portion of the Advertising Availabilities on each of the Services that are carried on the Class B Member’s Systems, as set forth in the Charter Class B Member Agreement.
8.4
Resale and Pricing of Advertising Availabilities by the Company
. The Managing Member or its designees shall determine the exact
Advertising Availabilities on the Systems, out of the Advertising Availabilities sold by the Members to the Company that will be resold by the Company. The rates for the Company’s Advertising Availabilities shall be set by the Managing Member
or NCC, as the case may be. The rates for the Company’s Advertising Availabilities shall be based upon market conditions taking into account rates charged by competitors in local, regional and national markets,
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8.5
Unsold and Reserved Advertising Availabilities
. Any Advertising Availabilities that
are not sold to the Company by a Member pursuant to Section 8.3 hereof and the applicable Class B Member Agreement, shall be reserved exclusively to such Member and may be used or sold by such Member in any manner that such Member in its sole
discretion deems appropriate, including but not limited to selling such Advertising Availabilities at such rates as such Member in its sole discretion shall determine, or using all or any portion of such Advertising Availabilities for public service
announcements, promotions of its and its Affiliates’ Systems, and cross channel programming promotions. In order that an advertiser may deal with an individual Member rather than the Company with respect to a particular advertising buy, each
Member shall maintain the separate capability to administer and fulfill direct sales of Advertising Availabilities to advertisers out of those Advertising Availabilities not sold to the Company by such Member.
8.6
Programming Decisions
. The Members acknowledge that each Member reserves the right to make programming decisions affecting its
Systems, including but not limited to decisions regarding pricing, tiering and discontinuing and commencing carriage of Services, and nothing in this Agreement or any Class B Member Agreement is intended to or shall impair any Member in making or
implementing any such decisions.
8.7
Cooperation with Company Business
. The Class B Member shall cooperate with the Company in the
operation of the Interconnect Business and comply with all reasonable procedures and requirements of the Company. The Class B Member shall use its commercially reasonable efforts (subject to the limitations of traffic and billing and ad insertion
hardware and software) to cablecast on its Systems to all appropriate subscribers at the scheduled times on the proper Services in accordance with all applicable and generally-accepted industry audio and video transmission and viewing standards, or
to otherwise provide to subscribers as applicable (e.g. statement stuffers), the advertising sold by or on behalf of the Company,
provided, however
, that each Member in its discretion shall have the right to reject any advertising that does
not comply with applicable law or with such Member’s advertising policies or standards for its Systems (including without limitation advertising not compatible with such Member’s System limitations relating to signal/content format and/or
analog or digital distribution capabilities or otherwise). Each Member shall cause the cablecasting of such advertising on its Systems to be of a quality at least equal to accepted industry standards, and otherwise to comply with standards
promulgated by the Managing Member for the Interconnect Business.
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9.
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Other Activities; Conflicts Of Interest
.
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9.1
Other Activities of Members
.
(a) The Members shall devote such time and effort to the business of the Company as they reasonably deem appropriate to conduct the
Company’s business and fulfill its purposes. Any Member may, without notice to or consent from any other Member, engage and invest in other business ventures or properties of any nature, including, without limitation, all aspects of the cable
television, cable television
11
advertising or advertising businesses. Neither the Company nor any other Member shall, by virtue of this Agreement, have any right or interest in such other ventures or investments or any
Member’s business ventures, whether current or future, or the income or profits therefrom.
(b) Any Member may use any Advertising
Availabilities that are owned by it and not sold to the Company for promotional purposes or for sale to third parties. All Members agree that the sales by and activities of any other Member as described in the preceding sentence are not prohibited
by this Agreement.
9.2
Conflicts of Interest
. The Company shall not be prohibited from or otherwise limited in employing,
contracting with or otherwise dealing with any Person, by reason of the fact that such Person is a Member or is an Affiliate of any Member, or is an Entity in which any Member has an interest, whether such relationship, affiliation, or interest is
direct or indirect.
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10.
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Financial Accounting and Tax Matters
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10.1
Fiscal Year
. The fiscal year of the
Company shall be the calendar year, unless another fiscal year is required pursuant to the Code, in which case the fiscal year of the Company shall be such required taxable year.
10.2
Capital Accounts
.
(a) A separate capital account shall be established and maintained for each Member in accordance with
Section 1.704-1 (b)(2)(iv)
of the income tax regulations promulgated under the Code (the “Treasury Regulations”).
(b) All provisions of this Agreement relating to the maintenance of capital accounts and the allocations of income, gain, loss, deductions and
credits, are intended to comply with Section 1.704-1(b) of the Treasury Regulations, and shall be interpreted and applied in a manner consistent with such regulations.
10.3
Accounting Method; Books and Records
. The Managing Member shall prepare and maintain in accordance with generally accepted
accounting principles consistently applied, complete and correct books of account and records, reflecting all Company operations. The Company shall use the accrual method of accounting. Such books and records shall be kept at the principal office of
the Company, or at such other reasonable place as the Managing Member may determine.
10.4
General Tax Matters
. The TMP (as defined
in Section 10.5 below) shall cause the preparation and timely filing of all tax or information returns or reports required to be filed by the Company pursuant to the Code, and of all other tax returns and reports deemed necessary and required in the
jurisdictions in which the Company does business. As soon as possible after the close of each fiscal year of the Company, and in any event no later than May 1 of the next fiscal year, the Managing Member shall provide each Class A Member with a
notice (the “Tax Information Notice”) containing
12
such information with respect to the Company’s operations during the preceding fiscal year as shall be necessary for the preparation and filing of such Member’s federal, state and local
income tax returns. The Managing Member shall cause the Company to make any elections required or permitted to be made under the Code in such manner as it reasonably may determine.
10.5
Tax Matters Partner
.
(a) The Managing Member shall be designated the Tax Matters Partner (“TMP”), and shall be treated in all respects as the “tax
matters partner” as defined in Section 6231(a)(7) of the Code. The TMP and the other Members shall use their commercially reasonable efforts to comply with the responsibilities outlined in Sections 6221 through 6233 of the Code (including any
Treasury Regulations promulgated thereunder) and in doing so shall incur no liability to any other Member.
(b) The TMP shall not settle
any audit, extend any statute of limitation, or file any protest, petition or pleading without the prior approval of the Class A Member, and any settlement that adversely affects the rights or obligations of any Class B Member or otherwise places
any affirmative obligations on such Class B Member(s) shall be subject to the advance written approval of such affected Class B Member.
(c) Any Member may engage legal counsel, certified public accountants, or others on its own behalf at its sole cost and expense.
10.6
Banking
. The available funds of the Company shall be deposited in its name in such checking, savings, certificate of deposit,
money market or similar accounts to be designated by the Managing Member and all withdrawals therefrom shall be made only upon the signature of Persons designated in writing by the Managing Member.
11.
Additional Members
. Subject to Section 13.2 below, no Person shall be entitled to become a Member of the Company unless all Members, each in their
sole discretion, approve the admission of such Person as a Class A Member or a Class B Member, as the case may be, and such Person complies with Section 13.3. No such Person shall be admitted as a Member until it has executed and delivered to the
Company a written instrument by which it agrees to be bound by all of the provisions of this Agreement and to become a Class A or Class B Member, as the case may be, and the Company and such Member have entered into a Class B Member Agreement, if
applicable, in form and content acceptable to the Managing Member.
13
12.1
Events of Withdrawal
.
(a) The occurrence of any of the following shall be an “Event of Withdrawal” of a Member for purposes of this Agreement:
(i) In the case of a Member that is a corporation, its dissolution or the revocation of its charter or certificate of incorporation;
(ii) In the case of a Member that is a separate partnership, limited liability company, joint venture or similar unincorporated association,
the dissolution and commencement of winding up of such Member;
(iii) The entry of a final order by a court of competent jurisdiction
adjudicating any Member to be incapable of performing such Member’s obligations under this Agreement (in which case the effective date of withdrawal shall be the date such decree is entered);
(iv) Except for the Charter Member’s filing under Chapter 11 of the U.S. Bankruptcy Code dated March 27, 2009 (the “Charter
Bankruptcy”), the filing by a Member of any petition in bankruptcy or for reorganization, management, composition, readjustment, liquidation or similar relief under any statute, law or regulation governing the rights and relief of debtors; or
the adjudication of a Member as bankrupt or insolvent; or the application by a Member for or such Member’s consent to or acquiescence in the appointment of a trustee, receiver or liquidator for all or any substantial part of such Member’s
assets; or the making by a Member of an assignment for the benefit of creditors; or the filing of any involuntary petition in bankruptcy against a Member, or the seeking of any relief under any bankruptcy law by a Member’s creditors, unless
such involuntary petition is dismissed or such relief is denied within 30 days after it has been filed or sought; or any substantially similar action on the part of or against a Member;
(v) The withdrawal of the Class A Member, effective on or after the last day of the December 2012 broadcast month (which withdrawal is hereby
expressly permitted), upon not less than ninety (90) days’ written notice to the Class B Member;
(vi) In the case of a Class B
Member, withdrawal in accordance with the terms of its Class B Member Agreement or upon the expiration of such Class B Member’s Class B Term; or
(vii) The withdrawal of a Class B Member other than in accordance with Section 12.1(a)(vi).
(b) When an Event of Withdrawal occurs, and unless notice is (by definition) required in connection with such Event of Withdrawal, the
affected Member or the legal representative thereof or successor in interest thereto (the “Successor”) shall promptly give notice to the Company. If such notice is not given within ten (10) days after the Event of Withdrawal occurs, any
Member having knowledge of the occurrence may give notice thereof. Unless otherwise provided above, the effective date of withdrawal shall be the date such notice is given.
14
(c) Notwithstanding the provisions of this Section 12.1, if a Class B Member withdraws from the
Company other than in accordance with Section 12.1(a)(vi) (provided that withdrawals effected in connection with a transaction described in Section 13 shall be governed by Section 13), such Class B Member shall immediately pay to the Company (and
the Company may withhold from any amount otherwise due to such Class B Member) an amount equal to the Liquidated Damages Amount (as defined in Section 12.1(d)).
(d) As used herein, the term “Liquidated Damages Amount” means an amount equal to the discounted present value, using the Prime Rate
on the date of withdrawal (the “Withdrawal Date”) as the discount rate, of an amount equal to (i) the difference between (1) the withdrawing Class B Member’s average monthly Class B Member Purchase Price, as applicable, during the
twelve (12) month period immediately preceding the Withdrawal Date (the “Average Monthly Purchase Price”), and (2) the average monthly Net Advertising Revenues over the same period, multiplied by (ii) the greater of (A) the number of
months remaining in the then-current term of such withdrawing Member’s Class B Member Agreement, and (B) six (6). For purposes of this Section 12.1(d), “Prime Rate” means the prime rate of interest, as of the date payment was due,
announced by The Bank of New York, or such other bank as shall be designated by the Managing Member, as the interest rate to be charged to such bank’s most credit-worthy commercial customers for short term commercial loans (the “Prime
Rate”).
(e) The parties agree that it would be extremely difficult or impractical to estimate the actual damages that would result
from a Class B Member’s withdrawal from the Company, and that the Liquidated Damages Amount constitute a reasonable estimate of and agreed stipulation to such damages.
12.2
Rights and Obligations After Withdrawal
.
(a) When an Event of Withdrawal occurs, then, as of the effective date of withdrawal (i) the withdrawing Member (the “Former Member”)
shall cease to be a member of the Company, (ii) the Systems owned, managed or otherwise controlled or represented by the Former Member shall cease to be Systems, and (iii) except as otherwise provided below, the Former Member shall cease to have any
right to Operating Cash Flow or other revenue or income of the Company generated or attributable to periods after the effective date of withdrawal;
provided,
that upon the approval of the Managing Member, a Successor shall have the right to
become a substitute Member of the Company of the same class as the Former Member, in which event none of the items listed above in this sentence shall apply. Notwithstanding the foregoing, each Member hereby agrees that, for a period of no more than
three months from the date of withdrawal, it will honor all contracts for the sale of Advertising Availabilities entered into by the Company prior to such Member’s withdrawal from the Company and that it will insert and cablecast all
commercials received from the Company after its withdrawal pursuant to any such contract. A Member’s withdrawal from the Company shall not affect such Member’s right to payment of its Class B
15
Member Purchase Price, as applicable, arising from such Former Member’s cablecasting of advertising pursuant to the preceding sentence. Neither a Former Member nor a Successor (unless the
Successor becomes a substitute Member) shall have any liability with respect to obligations incurred by the Company after the effective date of withdrawal, or any right to participate in the management of the Company or the decisions of the Members;
provided, however,
that the Members may not, without the express written consent of the Former Member or Successor, take any action which would change the Former Member’s interest in Company profits, losses or distributions arising prior
to the effective date of withdrawal, or the time at which distributions are payable, if such action would have required the Former Member’s consent if taken prior to the effective date of withdrawal.
(b) When an Event of Withdrawal occurs, the business of the Company shall be continued unless the Managing Member in its discretion elects
otherwise.
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13.
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Transfers of Company Interests; Conversion of Membership
.
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13.1
Restrictions on
Transfer
. Subject to Section 13.2 below, no Class B Member shall sell, assign, transfer, mortgage, hypothecate, pledge or otherwise dispose of or convey (“Transfer”) all or any portion of such Class B Member’s interest in the
Company (a “Company Interest”) other than in accordance with the provisions of this Agreement or with the prior written consent of the Managing Member, which shall not be withheld by the Managing Member without a reasonable basis therefor.
Any purported Transfer of a Company Interest in violation of this Agreement shall be void as against the Company, or, in the event of a transfer by operation of law, shall be deemed to constitute a withdrawal from the Company.
13.2
Permitted Transfers by Class B Members
.
(a) A Class B Member may at any time, without obtaining the consent of any other Member, mortgage, hypothecate, pledge or assign such Class B
Member’s Company Interest to a lender in connection with a general mortgage, hypothecation, pledge or assignment to such lender of the other assets of such Member or its Affiliates.
(b) If any Class B Member sells, assigns or otherwise conveys all or substantially all of the assets of the System during the Class B Term, or
any portion of the System that is capable of serving any of the subscribers to the System as of the date of such transaction, it shall assign and transfer to the purchaser, transferee or assignee of such assets, and shall cause such purchaser or
transferee to agree to become a Class B Member, effective upon consummation of such sale or transfer, and assume the obligations of the selling or transferring Class B Member’s Class B Member Agreement as it relates to the assets sold or
transferred, and in either case comply with the provisions of Section 13.3. No such sale, transfer or assignment shall require any consent or approval of the Company of any other Member.
16
13.3
Conditions to Transfer
. Notwithstanding any other provision hereof, no Transfer of a
Company Interest shall be effective as against the Company, and no transferee shall become a Member, unless such transferee (a) executes and delivers to the Company a written consent to be bound by all of the provisions of this Agreement and to
become a Class A Member or Class B Member, as the case may be, with respect to the Company Interest acquired, together with such other agreements including without limitation, a Class B Member Agreement, if applicable, as the Managing Member
shall in its reasonable discretion consider necessary or appropriate to effect the transferee’s admission to the Company; and (b) assumes all obligations under the Class B Member Agreement, if any, relating to the transferred Company Interest
accruing from and after the effective date of such transfer.
|
14.
|
Dissolution and Termination
.
|
14.1
Unilateral Acts Prohibited
. No Member shall
have the right to, and each Member agrees not to, (i) bring any action for partition with respect to any property of the Company, or (ii) take any action the direct or indirect result of which is to dissolve, withdraw from, terminate or liquidate
the Company, except as otherwise provided in this Agreement.
14.2
Events of Dissolution
. The Company shall dissolve upon the
occurrence of the earliest of the following events (“Events of Dissolution”):
(a) the expiration of the term provided for in
Section 2.6, unless such term is extended by amendment of this Agreement;
(b) the occurrence of an Event of Withdrawal, and the election
by the Managing Member not to continue the business of the Company,
(c) the occurrence of an event which makes it unlawful for the
business of the Company to be carried on pursuant to the Agreement; or
(d) the entry of a final order by a court of competent
jurisdiction decreeing a dissolution of the Company.
14.3
Winding Up, Liquidation and Distribution of Assets
.
(a) Li
quidating Member
. Upon the occurrence of any Event of Dissolution described in Section 14.2, the Managing Member or its designee
shall act as the “Liquidating Member” and shall immediately proceed to wind up the affairs of the Company and liquidate it in the manner prescribed by this Section.
(b)
Winding Up and Liquidation
. Except as otherwise provided herein, if the Company is dissolved and its affairs are to be wound-up,
the Liquidating Member shall (i) sell or otherwise liquidate all of the Company’s capital assets as promptly as practicable (except to the extent the Liquidating Member may determine to distribute any assets to the Members in kind), (ii)
allocate any profit or loss resulting from such sales to the Class A Member in accordance with this Agreement, (iii) discharge liabilities of the Company in the order of priority provided by law (including all Class B
17
Member Purchase Prices and costs relating to the dissolution, winding up, liquidation and distribution of assets), (iv) establish such reserves as may be reasonably necessary to provide for
contingent liabilities or other remaining liabilities of the Company, and (v) distribute the remaining assets to the Class A Member.
(c)
Complete Return of Capital
. The distribution of cash and/or property to the Members in accordance with the provisions of this Section 14.3 shall constitute a complete return to the Members of their capital contributions and a complete
distribution to the Members of their respective Company Interests.
(d)
Date of Termination
. Upon completion of the winding up,
liquidation and distribution of the assets, the Liquidating Member shall file or cause to be filed a Certificate of Cancellation of the Company’s Certificate of Formation, and the Company shall be deemed terminated.
15.
Representations And Warranties
. Each Member represents and warrants to the Company and to the other Members as follows:
15.1
Organization
. The Member is a duly organized and validly existing partnership, limited liability company or corporation in good
standing under the laws of the State of its formation and is qualified to do business in the State of Wisconsin. The Member has all requisite power and authority to own and/or operate its Systems and conduct its activities in the State of Wisconsin
as currently conducted.
15.2
Authority
. The Member has all requisite power and authority to execute, deliver and perform this
Agreement and, if applicable, its Class B Member Agreement. The execution, delivery and performance of this Agreement by the Member has been duly and validly authorized by all necessary action on the part of the Member and either its partners,
shareholders or members and its Board of Directors or other similar governing body. This Agreement has been duly and validly executed and delivered by the Member, and is the valid and binding obligation of the Member, enforceable against the Member
in accordance with its terms except to the extent that enforceability may be limited by applicable reorganization, insolvency, liquidation, readjustment of debt or similar laws and judicial decisions generally affecting the enforcement of rights of
creditors and by general principles of equity. Each Member shall cause any of its Affiliates that own or operate a System to take all actions necessary or appropriate in connection with such Member’s performance of its obligations hereunder and
compliance with the terms and conditions of this Agreement and any applicable Class B Member Agreement.
15.3
No Conflict
. The
execution, delivery and performance by the Member of this Agreement and, if applicable, its Class B Member Agreement do not and will not conflict with, result in a breach of or constitute a default under any contract (including, without limitation,
any representation, loan or lender agreement) to which the Member or its Affiliates is a party or by which the Member, its Affiliates or the Systems are bound.
18
15.4
Charter Ordinary Course Representation and Covenant
. The Charter Member further
represents, warrants and covenants that, regardless of whether in connection with the Charter Bankruptcy or otherwise, neither the Charter Member nor any of its Affiliates has or will take any position inconsistent with this Agreement and the
Charter Class B Member Agreement being treated as a contract entered into in the ordinary course of the Charter Member’s business.
16.
Notices
. Any notice or other communication given pursuant to this Agreement shall be in writing, and shall be given by express courier or certified mail, return receipt requested. Notice shall be deemed to have been duly given when delivered
by express courier (receipt confirmed) or on the date which is three (3) days after the date of mailing in accordance with this Section 16. Notice required to be given to the Company shall be given both to the Company and to all Class A Members.
Notice required to be given by the Company shall be given by such Person as the Managing Member directs. Notices shall be given to the Members at their addresses as set forth on
Exhibit 16
or such Member’s Class B Member Agreement, as
applicable, with copies sent to all addresses set forth therein. Any Member may change its address for purposes of this Section by giving notice of such change to the Company in accordance with this Section.
17.1
Indemnification; Limitation on Liability of Class A Members
.
(a) Each Member shall indemnify the Company and the other Members for, and hold them harmless from, any and all liability, loss, damage
or expense, including reasonable attorneys’ fees, to the extent that such arise from and are caused by such Member’s breach of this Agreement.
(b) Notwithstanding any other provision of this Agreement, no Member nor any officer, agent, employee or representative of a Member or the
Company shall be liable to any Member or to the Company with respect to any act performed or not performed pursuant to the terms of this Agreement, in connection with the conduct of the Company’s business or the preservation of its property,
except in the case of actions taken or omissions made in bad faith, involving gross negligence or willful or wanton misconduct, or not in accordance with the terms of this Agreement.
(c) The Company shall indemnify the Members and their respective Affiliates, shareholders, partners, members, employees, officers and
directors, for, and hold them harmless from, any liability, whether civil or criminal, and any loss, damage, or expense, including reasonable attorneys’ fees, to the extent that such arise from and are the result of the ordinary and proper
conduct of the Company’s business and the preservation of its business and property, or arise by reason of the fact that such Person is or was a Member or an officer, director or employee thereof; provided the Member or Person to be indemnified
acted in good faith and in a manner reasonably believed to be consistent with the provisions of this Agreement and without gross negligence or willful and wanton misconduct; and further provided that with respect to any criminal action or
19
proceeding, the Member or Person to be indemnified had no reasonable cause to believe the conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of
nolo contendere
or its equivalent shall not of itself create a presumption that indemnification is not available hereunder. The obligation of the Company to indemnify the Members or any other Person hereunder
shall be satisfied out of Company assets only, and if the assets of the Company are insufficient to satisfy the Company’s obligation to indemnify a Member or any other Person, such Member or Person to be indemnified shall not be entitled to
contribution from any other Member.
17.2
No Recourse Against Others
. The Members acknowledge and agree that the obligations of the
Members under this Agreement are solely corporate, partnership or limited liability company obligations, as the case may be, and that nothing in this Agreement shall create or give rise to any personal liability on the part of the Members’
shareholders, partners, members, officers, directors or employees. Any right of recourse to, or claim of personal liability against, the shareholders, partners, members, officers, directors or employees of any Member by virtue of this Agreement are
hereby expressly waived and released by all Members in consideration of the benefits conferred upon them under this Agreement.
17.3
Other Matters Concerning the Class A Members
.
(a) The Managing Member may rely and shall be protected in acting or refraining from
acting upon any certificate, document, or other instrument believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Managing Member may consult with legal counsel, accountants, appraisers, management consultants, investment bankers, and other
consultants and advisors selected by it and any opinion or advice of any such Person as to matters that the Managing Member believes to be within such Person’s professional or expert competence shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by the Managing Member hereunder in good faith and in accordance with such opinion or advice.
17.4
Confidentiality and Publicity
.
(a) No Member will, nor will any Member permit any Affiliate to, issue any press release or make any other public announcement or any oral or
written statements relating to the terms (other than the existence) of this Agreement, any associated Class B Member Agreement or the transactions contemplated hereby or thereby, except as required by applicable law, without the prior written
consent of the Managing Member in the case of disclosures by the Charter Member or its Affiliates, or the prior written consent of the Charter Member in the case of disclosures by TWE or its Affiliates, which consents shall not be unreasonably
withheld, conditioned or delayed.
20
(b) Each Member will hold, and will cause its Affiliates, employees, consultants, advisors and
agents to hold, the terms of this Agreement in confidence; provided that a Member may use and disclose such information (a) once it has become publicly disclosed (other than by such Member in breach of its obligations under this Section), and (b) to
the extent that such Member may be advised by legal counsel or compelled by applicable law to do so. If a Member becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process)
or shall be advised by legal counsel to disclose any such information, the compelled Member shall undertake reasonable efforts to provide the other Member with prompt notice of such requirement or advice prior to disclosure so that the other Member
may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. If such protective order or other remedy is not obtained, or the other Member waives compliance with the provisions hereof, the
compelled Member agrees to furnish only that portion of such information which it is legally required to so furnish and, at the request of any other Member, to use reasonable efforts to obtain assurance that confidential treatment will be accorded
to such information, it being understood that such reasonable efforts shall be at the cost and expense of the Member requesting confidential treatment of such information. Each Member also may disclose such information to employees, consultants,
advisors and agents whose knowledge is necessary in connection with the conduct of the Interconnect Business. The obligation of the Members to hold information in confidence pursuant to this Section will be satisfied if a Member exercises the same
care with respect to such information as it would exercise to preserve the confidentiality of its own similar information.
17.5
Liability For Unauthorized Acts
. Neither any Member (or any of its agents or employees) nor any employee or agent of the Company shall act as or be deemed an agent of any Member without the express written authorization to act as agent of
such Member. Any act by a Member (or its agent or employee) without proper authorization will create separate liability of the Member so acting. Any contract entered into by a Member (or its agent or employee) that is outside the scope of this
Company will not be binding on any other Member or the Company.
17.6
Franchise Fees
. Nothing in this Agreement shall require the
Company to pay any franchise fees or other governmental taxes, licenses, fees or charges imposed by any municipality upon the revenues of a System; any such obligations shall remain solely with the applicable Member or System operator. The Company
shall, upon the request of any Member, provide to such Member information relating to the Company reasonably necessary for the Member to comply with its franchise fee obligations.
17.7
Organizational Expenses
. Each Member shall bear and pay all expenses incurred by such Member in connection with the preparation of
this Agreement, including, without limitation, fees of counsel or accountants retained by such Member.
17.8
Amendments
. This
Agreement may be amended only by the written agreement of all Members.
21
17.9
Force Majeure
. Neither the Company nor any Member shall be liable for any failure or
delay in performance under this Agreement, or for any losses or damages arising therefrom, because of an act of God, accident, fire, explosion, flood, strike, labor dispute, war, governmental or judicial action or any other similar cause beyond
their control.
17.10
Binding and Entire Agreement
. Subject to the restrictions on assignments set forth herein, this Agreement
shall inure to the benefit of, and be binding upon, the undersigned Members and their respective legal representatives, heirs, successors and assigns. This Agreement and the applicable Class B Member Agreement, as the case may be, constitute the
entire agreement of the Members with respect to the subject matter hereof, and supersede all prior agreements or negotiations, whether written or oral.
17.11
Governing Law
. This Agreement shall be interpreted and enforced in accordance with the law of the State of Delaware.
17.12
Severability
. If any provision of this Agreement, or the application thereof to any Person, shall be invalid or unenforceable to
any extent, the remainder of this Agreement, and the application thereof to other Persons or circumstances, shall not be impaired, and shall be enforced to the fullest extent permitted by law.
17.13
Counterparts
. This Agreement may be executed in one instrument, signed by all parties, or in counterparts, in which case all such
counterparts shall constitute one and the same instrument.
17.14
Ownership of Company Property
. A Member’s interest in the
Company shall be personal property for all purposes. All real and other property owned by the Company shall be deemed owned by the Company as an entity, and no Member, individually, shall have any ownership of such property.
17.15
No Third-Party Beneficiaries
. The Members intend and agree that no Person shall be a third party beneficiary of this Agreement.
Any agreement to make any contribution or to otherwise pay any amount and any assumption of liability, express or implied, contained in this Agreement, shall be only for the benefit of the Members and their respective permitted successors and
assigns, and such agreements and assumptions shall not inure to the benefit of the obligees under any indebtedness or to any other Person.
[S
IGNATURE
P
AGE
F
OLLOWS
]
22
EXECUTED effective as of the Amended and Restated Effective Date.
|
|
|
|
|
|
|
|
|
TIME WARNER ENTERTAINMENT
COMPANY,
L.P.
|
|
|
|
|
|
|
|
By:
|
|
/s/ Joan Gillman
|
|
|
|
Name:
|
|
Joan Gillman
|
|
|
|
Title:
|
|
EVP and President
Time Warner Cable Media
Sales
|
|
|
|
|
|
|
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
|
|
|
|
|
|
|
|
By:
|
|
Charter Communications, Inc., its Manager
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jim Heneghan
|
|
|
|
Name:
|
|
Jim Heneghan
|
|
|
|
Title:
|
|
President
|
23
EXHIBIT 2.5
ADVERTISER CATEGORIES;
DEFINITION OF ADVERTISING AVAILABILITIES
|
1.
|
Advertiser categories
: All advertisers: national, regional and local.
|
|
2.
|
Definition of Advertising Availabilities
: For all purposes of this Agreement:
|
(a)
“Advertising Availabilities” means (i) traditional linear or “spot cable” advertising availabilities (“Spot Cable Ad Avails”) allocated or otherwise available to a System on a Service, (ii) VOD Availabilities, and (iii)
any other time periods or equivalent opportunities made available for commercial advertising on any Service or through advanced advertising tools or applications, including without limitation advertising opportunities or time periods placed or
enabled (Y) by the Company or Managing Member using the services of Canoe Ventures, LLC, or (Z) using Company Equipment (as defined in Section 12 of the Charter Class B Agreement), or any other equipment, personnel or resources owned or operated by
the Managing Member or its Affiliates, in each case as determined by the Managing Member in its reasonable discretion (“Advanced Advertising Avails”).
(b) “VOD Availabilities” means server space or other available capacity within or comprising a VOD Service or other group or
category of VOD Content that may be accessed by Subscribers for playback using a VOD Platform.
(c) “VOD Content” means video
assets of any type, including without limitation commercial advertising, promotions and/or sponsorships, together with the accompanying metadata, in each case which comply with the Charter Member’s reasonable, generally applicable standards to
the extent that the Charter Member has provided TWE with reasonable advance written notice thereof.
(d) “VOD Platform” means
any platform available via the Systems over which video-on-demand or any similar technology allows for the exhibition of video programming chosen by a Subscriber for display on that Subscriber’s video display unit on an on-demand basis, such
that the Subscriber is able, at his or her discretion, to select the time for commencement of exhibition.
(e) “VOD Service”
means a location or folder currently contemplated to be available directly beneath the home page of the VOD Platform (including any sub-folders or navigation buttons which may be selected thereunder) that contains or is comprised of VOD
Availabilities.
EXHIBIT 8.2
CLASS A MEMBER SYSTEMS AND SERVICES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling Zones
|
|
GREEN BAY
INTERCONNECT
|
|
|
FOX CITIES,
GREEN BAY,
OSHKOSH
|
|
|
FOX CITIES
|
|
|
GREEN BAY
|
|
|
OSHKOSH
|
|
|
MARINETTE
|
|
|
Sys Codes
|
|
#8383
|
|
|
#6366
|
|
|
#2354
|
|
|
#2353
|
|
|
#2744
|
|
|
#2743
|
|
|
A&E
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
AMC
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
ANPL
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
BRVO
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
BTN
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
0
|
|
|
CMT
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
CNBC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
CNN
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
COMD
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
DISC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
E!
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
ESPN
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
ESPN2
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
FAM
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
FOOD
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
FX
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
FXNC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
FXSP
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
GOLF
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
HDLN
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
HGTV
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
HIS
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
LIF
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
LMN
|
|
|
0
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
MSNBC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
MTV
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
NGEO
|
|
|
0
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
NICK
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
OXYGN
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
SCFI
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling Zones
|
|
GREEN BAY
INTERCONNECT
|
|
|
FOX CITIES,
GREEN BAY,
OSHKOSH
|
|
|
FOX CITIES
|
|
|
GREEN BAY
|
|
|
OSHKOSH
|
|
|
MARINETTE
|
|
|
Sys Codes
|
|
#8383
|
|
|
#6366
|
|
|
#2354
|
|
|
#2353
|
|
|
#2744
|
|
|
#2743
|
|
|
SPEED
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
SPIKE
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
Sports 32
|
|
|
0
|
|
|
|
136,026
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
TBS
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TLC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TNT
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TOON
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TRU
|
|
|
0
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TTC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TVLD
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
TWC
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
USA
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
VH-1
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
9,063
|
|
|
VS
|
|
|
210,690
|
|
|
|
0
|
|
|
|
59,404
|
|
|
|
48,749
|
|
|
|
18,810
|
|
|
|
0
|
|
2
EXHIBIT 16
MEMBER ADDRESSES
TWE:
Time Warner Cable Media Sales
1266 Dublin Road
P.O. Box 2553
Columbus, OH 43215
Attn:
Laure Nordholt
with copies to:
Time Warner Cable Media Sales
1633 Broadway, 39th Floor
New
York, NY 10019
Attn: President
Time Warner Cable Media Sales
1633 Broadway, 39th Floor
New
York, NY 10019
Attn: Sean Coar
Time Warner Cable
60 Columbus
Circle
New York, NY 10023
Attn: General Counsel
Charter Member:
Charter Communications
Suite 100
1265 John Q. Hammons Drive
Madison, WI 53717
Attn: Lawrence
Eleftheri
Fax: (608) 826-1565
with copies to:
Charter
Communications
12405 Powerscourt Dr.
St. Louis, MO 63131
Attn: Legal
Department - Operations
Exhibit 3.489
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State of Delaware
Secretary of State
Division of Corporations
Delivered 05:50 PM 01/11/2008
FILED 05:44 PM 01/11/2008
SRV 080037714 - 4488570 FILE
|
CERTIFICATE OF FORMATION
OF
TWC/CHARTER LOS
ANGELES CABLE ADVERTISING, LLC
The undersigned has executed and filed this Certificate of Formation as an authorized person in order
to form TWC/Charter Los Angeles Cable Advertising, LLC (the “Company”) as a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act, and in connection therewith does hereby certify as follows:
1.
Name
: The name of the limited liability company (the “Company”) is TWC/Charter Los Angeles Cable Advertising, LLC.
2.
Registered Office: Registered Agent
: The address of the Company’s registered office in the State of Delaware is 1209
Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
Date: January 11, 2008
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|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
/s/ Camron R. Kuelthau
|
|
Printed Name: Camron R. Kuelthau
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|
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Authorized Person
|
Exhibit 3.490
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWC/CHARTER LOS
ANGELES CABLE ADVERTISING, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Media LLC, a Delaware limited liability company, Charter Communications Holding Company, LLC, a Delaware limited liability company, and TWC Media Blocker LLC, a Delaware limited liability
company (each a “
Member
” and collectively, the “
Members
”), as all of the members of TWC/Charter Los Angeles Cable Advertising, LLC, a Delaware limited liability company (the “
Company
”), the Company,
and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Members desire to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWC/Charter Los Angeles Cable Advertising, LLC. The business of the Company shall be
conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The
address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on
the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405
Powerscourt Drive, St. Louis, MO 63131. At any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of
State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Members hereby elect Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the
2
“Board”),
the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or
under the direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the Company, who shall have such authority with
respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute or endorse any check, draft,
evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
3
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company
(“Intercompany Indebtedness”)
,
(iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany
Indebtedness or (iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the
Company. The officers may include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board,
the Chairman of the Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto (as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1 (b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests
(“Percentage Interests”),
and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution
(“Adjusted Capital Account Balance”).
Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due provision for all
debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have no recourse
against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if such
distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed
in
accordance with the provisions of the Act and the Certificate is cancelled.
7
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the
purposes of winding up its business and affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this
Agreement and the Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in the best interests of the Members,
including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the
payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the
Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses
that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than one Member, no Member shall
transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each
of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the
transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is intended to be treated as a partnership for U.S. federal
income tax purposes. So long as the Company has two or more partners for U.S. federal income tax purposes, it is intended that the Company be treated as a partnership for U.S. federal income tax purposes, and the Members shall not take any position
or make any election, in a tax return or otherwise, inconsistent therewith. In the event that the Company has only one owner for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company shall be
disregarded as an entity separate from its owner and its activities be treated as a division of such owner.
SECTION 14.
Exculpation
and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the
Company, their respective affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall
engage, or shall have
8
engaged, in activities on behalf of the Company (a
“Specified Agent”)
shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor
any Member shall take any action against such Members, Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority
granted by this Agreement, or otherwise performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of
the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the
Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided
herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid
in
settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
9
(e)
Reliance on the Agreement.
To the extent that, at law or in equity, a Member, Manager,
director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member, Manager, director,
officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement,
to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other
duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below),
10
(i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls
and the Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly.
For purposes of this Section 15(h),
“Default Rule”
shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited
Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWC/CHARTER
LOS
ANGELES
CABLE
ADVER
TISING, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice
President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBERS
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TIME WARNER CABLE MEDIA LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice
President, Deputy General Counsel and Assistant Corporate Secretary
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CHARTER
COMMUNICATIONS
HOLDING
COMPANY,
LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice
President, Deputy General Counsel and Assistant Corporate Secretary
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TWC MEDIA BLOCKER LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice
President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC/Charter Los Angeles Cable Advertising, LLC]
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
Title: Senior Vice
President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWC/Charter Los Angeles Cable Advertising, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Time Warner Cable Media LLC
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90.87
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%
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Charter Communications Holding Company, LLC
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8.13
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%
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TWC Media Blocker LLC
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1.00
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%
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Total
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100.00
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%
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B-1
Exhibit 3.491
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State of Delaware
Secretary of State
Division of Corporations
Delivered 06:28 PM 09/16/2010
FILED 05:53 PM 09/16/2010
SRV 100915966 - 4873016 FILE
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CERTIFICATE OF FORMATION
OF
TWCIS HOLDCO LLC
This Certificate of Formation of TWCIS Holdco LLC (the “Company”) is being executed by the undersigned for the purpose of
forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWCIS Holdco
LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has
executed this Certificate of Formation this 16th day of September, 2010.
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/s/ Riina Tohvert
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Riina Tohvert,
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Authorized Person
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Exhibit 3.492
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TWCIS HOLDCO LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among TWC Digital Phone LLC, a Delaware limited liability company (the “
Member
”), as the sole member of TWCIS Holdco LLC, a Delaware limited liability company (the “
Company
”),
the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be TWCIS Holdco LLC. The business of the Company shall be conducted under such name or any
other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the registered office
of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of
Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14. Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any
other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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TWCIS HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TWC DIGITAL PHONE LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of TWCIS Holdco LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform
Ops
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A-1
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Name
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Title
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Charles Fisher
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Senior Vice President, Corporate Finance
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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David A. Christman
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Senior Vice President
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William F. Osbourn
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Senior Vice President & Controller
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Matthew Siegel
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Senior Vice President
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Michael W. Quinn
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Group Vice President
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Meredith Garwood
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Assistant Treasurer
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Tom Harding
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Vice President & Assistant Treasurer
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Susan A. Waxenberg
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Assistant Secretary
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In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As
of May 18, 2016
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Members
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Economic Interest
Percentage
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TWC Digital Phone LLC
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100
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%
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Total
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100
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%
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B-1
Exhibit 3.493
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State of Delaware
Secretary of State
Division of
Corporations
Delivered 11:42 AM 05/09/2016
FILED 11:42 AM 05/09/2016
SR
20162954207 - File Number 6037239
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CERTIFICATE OF FORMATION
OF
WISCONSIN PROCUREMENT
HOLDCO LLC
This Certificate of Formation of Wisconsin Procurement Holdco LLC (the “Company”) is being executed by the
undersigned, an authorized person, for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act (6 Del.C. §18-101,
et seq.
).
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1.
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The name of the limited liability company is Wisconsin Procurement Holdco LLC.
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2.
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The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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3.
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This Certificate of Formation shall be effective as of 11:59 p.m. on May 9, 2016.
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IN
WITNESS WHEREOF, the undersigned, an authorized person, has executed this Certificate of Formation this 9th day of May, 2016.
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By:
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/s/ Martina Davis
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Martina Davis
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Authorized Person
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Exhibit 3.494
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
WISCONSIN
PROCUREMENT HOLDCO LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Time Warner Cable Midwest LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Wisconsin Procurement Holdco LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be Wisconsin Procurement Holdco LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in
the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting.
Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
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ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
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(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in
such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except
as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any affiliate of any Member, except for any litigation or
arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
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(b)
Election and Term.
The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
5
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and
shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of
the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers.
The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability.
Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer.
At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company
to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a
“Specified Agent”)
shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided, however,
that the
foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest
may be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a
legend that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any
other applicable jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h),
“Default Rule”
shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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WISCONSIN PROCUREMENT HOLDCO LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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TIME WARNER CABLE MIDWEST LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Wisconsin Procurement Holdco LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President, Business Enterprise Services
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Don Detampel
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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|
Senior Vice President, Financial Planning and Analysis
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|
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Rocky Boler
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|
Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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|
Senior Vice President, Finance and Corporate Treasurer
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|
|
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Alexander Dudley
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|
Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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A-1
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|
Name
|
|
Title
|
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Charles Fisher
|
|
Senior Vice President, Corporate Finance
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|
James M. Heneghan
|
|
President, Charter Media
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Alexander Dennis Hoehn-Saric
|
|
Senior Vice President, Government Affairs
|
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|
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|
Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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James F. McGann, Jr.
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Senior Vice President, Charter Business
|
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
|
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
|
|
Vice President, Associate General Counsel, and Assistant Corporate Secretary
|
|
|
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Alan Jones
|
|
Vice President, Tax
|
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|
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Meredith Garwood
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Group Vice President, Tax
|
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|
|
|
David A. Christman
|
|
Senior Vice President
|
|
|
|
|
William F. Osbourn
|
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Senior Vice President & Controller
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|
|
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Matthew Siegel
|
|
Senior Vice President
|
|
|
|
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Michael W. Quinn
|
|
Group Vice President
|
|
|
|
|
Meredith Garwood
|
|
Assistant Treasurer
|
|
|
|
|
Tom Harding
|
|
Vice President & Assistant Treasurer
|
|
|
|
|
Susan A. Waxenberg
|
|
Assistant Secretary
|
In addition to the foregoing officers, officers of the Company immediately prior to the date hereof with the
titles of senior vice president or below shall remain as officers of the Company in such capacities.
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Time Warner Cable Midwest LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
B-1
Exhibit 3.495
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State of Delaware
Secretary of State
Division of Corporations
Delivered 11:11 PM 06/17/2008
FILED 11:11 PM 06/17/2008
SRV 080702823 - 4563164 FILE
|
CERTIFICATE OF FORMATION
OF
BHN HOME SECURITY SERVICES, LLC
1. The name of the limited liability company is BHN Home Security Services, LLC.
2. The address of its registered office in the State of Delaware is: Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned
has executed this Certificate of Formation of BHN Home Security Services, LLC this 17
th
day of June, 2008.
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/s/ Andrew P. Kransdorf
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By: Andrew P. Kransdorf
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 03:01 PM 01/14/2010
FILED 02:07 PM 01/14/2010
SRV 100039679 - 4563164 FILE
|
STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The
limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The
name of the limited liability company is
BHN HOME SECURITY SERVICES, LLC
2. The Registered Office of the limited liability company in the State of
Delaware is changed to 2711 Centerville Road, Suite 400 (street), in the City of Wilmington, Zip Code 19808. The name of the Registered Agent at such address upon whom process against this limited liability company may be served is Corporation
Service Company
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By:
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/s/ S. I. Newhouse, Jr.
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Authorized Person
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Name:
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S. I. Newhouse, Jr.
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Print or Type
|
Exhibit 3.496
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BHN HOME SECURITY
SERVICES, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of BHN Home Security Services, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be BHN Home Security Services, LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in
the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
3
(9) change the status of the Company from one in which management is vested in the Manager to
one in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term.
The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as
from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall
deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the
Board.
5
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers.
The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to
time. The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to
dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims
against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability
company interest in the Company to any other person without the prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a
portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall
amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or
substitute Members to the Company shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall
agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded
entity for U.S. federal income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its
owner and its activities be treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal
income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to
subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best
interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the
property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as
expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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BHN HOME SECURITY SERVICES, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of BHN Home Security Services, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
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Senior Vice President/Operations
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Jeff Chen
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
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Vice President/Corporate Financial Planning
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Kristi Kramersmeier
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Vice President/New Product Development
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John Ogden
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Vice President/Corporate Finance
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-2-
OTHER OFFICERS
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Kevin Hyman
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EVP/Cable Operations
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Craig Cowden
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Chief Network Officer & SVP Enterprise Solutions
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Brad Freathy
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VP/Enterprise Sales & Solutions Engineering
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Paul Woelk
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VP/Finance & Business, NEO and Enterprise Solutions
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Jose Valdez
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VP/Voice & Systems Engineering and Operations
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Mark Swanson
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VP/Managed Voice Services
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John Hendrickson
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VP/Network & Video Engineering Operations
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John Dickinson
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VP/Network Strategy & Architecture
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Jake Perlman
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Chief Information Officer
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Pam Hagan
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VP/Corporate Human Resources
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Karen Blackburn
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VP/Human Resources – Florida
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Marva Johnson
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VP/Corporate Government & Industry Affairs
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Kimberly Maki
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VP/Corporate Communications
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Alan Mason
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VP/News & Local Programming
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Todd Stewart
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VP/Corporate Advertising Sales
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Mike Dixon
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VP/Regional/National Sales
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Dave Hall
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VP/Local/Zone Sales
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Steve Colafrancesco
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VP/Corporate Marketing
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Cathy Schelb
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VP/Marketing
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Michelle Stuart
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VP/Marketing
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Bill Futch
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VP/Corporate Customer Care
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Joan Scazarro
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VP/Customer Care Operations
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John Doctor
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VP/Corporate Field Operations
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Scott Laris
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VP/Corporate Plant Engineering
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Dave Marvin
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VP/Corporate Property Solutions
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Kevin Hord
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VP/Corporate Procurement & Materials Management
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Roberta Segers
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VP/Billing and CRM Systems
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Josh Ebert
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VP/SMB Sales and Operations
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DeLynda Faudel
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VP/Sales Operations
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A-1
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BHN - Florida
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Mike Robertson
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SVP/Florida Operations
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Michel Champagne
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VP/GM – Central Operations
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Carlos del Castillo
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VP/GM – Hills borough
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John Dosher
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VP/GM – Western Operations
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Paul Hanson
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VP/GM – Northeast Operations
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Allen Smith
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VP/SMB Operations
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Bill Brennan
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VP/Financial Operations – Florida
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Sabrina Calhoun
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VP/Engineering: Construction and Design
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Bakersfield
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Danielle Wade
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VP/General Manager
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Birmingham
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Scott Horne
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VP/General Manager
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Tammy Strong
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VP/Marketing & Sales
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Detroit
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Robert McCann
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Division President
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Dan Dinsmore
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VP/Marketing
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Cynthia Severts
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VP/Technical Operations
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Indianapolis
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Don Williams
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VP/General Manager
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A-2
EXHIBIT B
Percentage Interests
As
of May 18, 2016
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Members
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Economic Interest
Percentage
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Bright House Networks, LLC
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100
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%
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Total
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100
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%
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Exhibit 3.497
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State of Delaware
Secretary of State
Division of Corporations
Delivered 07:38 PM 12/06/2006
FILED 06:17 PM 12/06/2006
SRV 061115694 - 4262890 FILE
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CERTIFICATE OF FORMATION
OF
BHN Spectrum
Investments, LLC
1. The name of the limited liability company is BHN Spectrum Investments, LLC
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the
undersigned have executed this Certificate of Formation of BHN Spectrum Investments, LLC this 6
th
day of December, 2006.
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/s/ Craig D. Holleman
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Name:
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Craig D. Holleman
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Title:
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 03:01 PM 01/14/2010
FILED 02:09 PM 01/14/2010
SRV 100039704 - 4262890 FILE
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STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The name of the limited liability company is
BHN SPECTRUM INVESTMENTS, LLC
2. The Registered Office of the limited liability company in the State of Delaware is changed to 2711 Centerville Road, Suite 400 (street), in the City of
Wilmington, Zip Code 19808. The name of the Registered Agent at such address upon whom process against this limited liability company may be served is Corporation Service Company
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By:
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/s/ S. I. Newhouse, Jr.
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Authorized Person
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Name:
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S. I. Newhouse, Jr.
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Print or Type
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Exhibit 3.498
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BHN SPECTRUM
INVESTMENTS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of BHN Spectrum Investments, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq.,
as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General.
(a)
Formation.
Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly
provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and management of the Company shall be governed by the Act.
(b)
Name.
The name of the Company shall be BHN Spectrum Investments, LLC. The business of the Company shall be conducted under such
name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent.
The address of the
registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in
the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office.
The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term.
The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation.
The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration.
The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting.
Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes.
The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers.
The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management.
(a)
Management by Manager.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required.
The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
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(9) change the status of the Company from one in which management is vested in the Manager to
one in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers.
(a)
Officers.
The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term.
The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as
from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal.
Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President.
The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President.
Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board
may direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those
present at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer.
The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall
deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the
Board.
5
v)
Chairman of the Board.
The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers.
The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members.
(a)
Members.
The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to
time. The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members.
Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability.
Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities.
Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests.
The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions.
The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations.
The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up.
(a)
Dissolution.
The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution.
Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up.
Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to
dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims
against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer.
At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability
company interest in the Company to any other person without the prior written consent of each of the other Members;
provided, however,
that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a
portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall
amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members.
The admission of additional or
substitute Members to the Company shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall
agree to become bound by this Agreement.
SECTION 13.
Tax Matters.
As of the date of this Agreement, the Company is a disregarded
entity for U.S. federal income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its
owner and its activities be treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal
income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to
subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification.
(a)
Exculpation.
Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best
interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the
property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as
expressly provided herein;
provided, however,
that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification.
In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided, however,
that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption.
The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification.
Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement.
To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous.
(a)
Certificate of Limited Liability Company Interest.
A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment.
The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability.
In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision
hereof.
(f)
Multiple Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
(g)
Entire Agreement.
This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the Default Rule is modified or negated accordingly, and (ii) if it is
necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For purposes of this Section 15(h), “
Default Rule
” shall
mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
10
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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BHN SPECTRUM INVESTMENTS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of BHN Spectrum Investments, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
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Senior Vice President/Operations
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Jeff Chen
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
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Vice President/Corporate Financial Planning
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Kristi Kramersmeier
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Vice President/New Product Development
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John Ogden
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Vice President/Corporate Finance
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OTHER OFFICERS
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Kevin Hyman
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EVP/Cable Operations
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Craig Cowden
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Chief Network Officer & SVP Enterprise Solutions
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Brad Freathy
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VP /Enterprise Sales & Solutions Engineering
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|
|
|
|
Paul Woelk
|
|
VP/Finance & Business, NEO and Enterprise Solutions
|
|
|
|
|
Jose Valdez
|
|
VP/Voice & Systems Engineering and Operations
|
|
|
|
|
Mark Swanson
|
|
VP/Managed Voice Services
|
|
|
|
|
John Hendrickson
|
|
VP/Network & Video Engineering Operations
|
|
|
|
|
John Dickinson
|
|
VP/Network Strategy & Architecture
|
|
|
|
|
Jake Perlman
|
|
Chief Information Officer
|
|
|
|
|
Pam Hagan
|
|
VP/Corporate Human Resources
|
|
|
|
|
Karen Blackburn
|
|
VP/Human Resources - Florida
|
|
|
|
|
Marva Johnson
|
|
VP/Corporate Government & Industry Affairs
|
|
|
|
|
Kimberly Maki
|
|
VP/Corporate Communications
|
|
|
|
|
Alan Mason
|
|
VP/News & Local Programming
|
|
|
|
|
Todd Stewart
|
|
VP/Corporate Advertising Sales
|
|
|
|
|
Mike Dixon
|
|
VP/Regional/National Sales
|
|
|
|
|
Dave Hall
|
|
VP/Local/Zone Sales
|
|
|
|
|
Steve Colafrancesco
|
|
VP/Corporate Marketing
|
|
|
|
|
Cathy Schelb
|
|
VP/Marketing
|
|
|
|
|
Michelle Stuart
|
|
VP/Marketing
|
|
|
|
|
Bill Futch
|
|
VP/Corporate Customer Care
|
|
|
|
|
Joan Scazarro
|
|
VP/Customer Care Operations
|
|
|
|
|
John Doctor
|
|
VP/Corporate Field Operations
|
|
|
|
|
Scott Laris
|
|
VP/Corporate Plant Engineering
|
|
|
|
|
Dave Marvin
|
|
VP/Corporate Property Solutions
|
|
|
|
|
Kevin Hord
|
|
VP/Corporate Procurement & Materials Management
|
|
|
|
|
Roberta Segers
|
|
VP/Billing and CRM Systems
|
|
|
|
|
Josh Ebert
|
|
VP/SMB Sales and Operations
|
|
|
|
|
DeLynda Faudel
|
|
VP/Sales Operations
|
A-1
|
|
|
|
|
BHN - Florida
|
|
|
|
|
|
|
Mike Robertson
|
|
SVP/Florida Operations
|
|
|
|
|
Michel Champagne
|
|
VP/GM – Central Operations
|
|
|
|
|
Carlos del Castillo
|
|
VP/GM – Hills borough
|
|
|
|
|
John Dosher
|
|
VP/GM – Western Operations
|
|
|
|
|
Paul Hanson
|
|
VP/GM – Northeast Operations
|
|
|
|
|
Allen Smith
|
|
VP/SMB Operations
|
|
|
|
|
Bill Brennan
|
|
VP/Financial Operations – Florida
|
|
|
|
|
Sabrina Calhoun
|
|
VP/Engineering: Construction and Design
|
|
|
|
|
Bakersfield
|
|
|
|
|
|
|
Danielle Wade
|
|
VP/General Manager
|
|
|
|
|
Birmingham
|
|
|
|
|
|
|
Scott Horne
|
|
VP/General Manager
|
|
|
|
|
Tammy Strong
|
|
VP/Marketing & Sales
|
|
|
|
|
Detroit
|
|
|
|
|
|
|
Robert McCann
|
|
Division President
|
|
|
|
|
Dan Dinsmore
|
|
VP/Marketing
|
|
|
|
|
Cynthia Severts
|
|
VP/Technical Operations
|
|
|
|
|
Indianapolis
|
|
|
|
|
|
|
Don Williams
|
|
VP/General Manager
|
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
|
Bright House Networks, LLC
|
|
|
100
|
%
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
Exhibit 3.499
|
|
|
|
|
|
|
|
|
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:30 AM 07/09/2002
020439096 - 3545397
|
CERTIFICATE OF FORMATION
OF
TWEAN SUBSIDIARY, LLC
This Certificate of Formation of TWEAN Subsidiary, LLC (the “Company”) is being executed by the undersigned for the purpose
of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
1. The name of the Company is TWEAN
Subsidiary, LLC.
2. The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
3. This
Certificate of Formation shall be effective at the time of filing with the Delaware Secretary of State.
IN WITNESS WHEREOF, the
undersigned, an authorized person of the Company, has executed this Certificate of Formation this 8th day of July, 2002.
|
|
|
/s/ Jill A. Clarke
|
|
Jill A. Clarke
|
|
|
|
|
|
|
|
|
|
|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 03/06/2003
030151403 - 3545397
|
CERTIFICATE OF AMENDMENT
OF
TWEAN SUBSIDIARY, LLC
1. The name of the limited liability company is TWEAN Subsidiary, LLC.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
The name of the limited liability company is hereby changed from TWEAN Subsidiary, LLC to Bright House Networks, LLC.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of TWEAN Subsidiary, LLC this 27
th
day of February, 2003.
|
|
|
/s/ Steven A. Miron
|
|
Steven A. Miron
|
|
President / authorized person
|
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 02:10 PM 12/12/2003
FILED 02:04 PM 12/12/2003
SRV 030801213 - 3545397 FILE
|
CERTIFICATE OF MERGER
OF
BHN-CFNC HOLDINGS,
LLC
INTO
BRIGHT
HOUSE NETWORKS, LLC
**************
Pursuant to Sec. 18-209 of the Delaware Limited Liability Company Act, the undersigned surviving Limited Liability Company submits the following Certificate
of Merger for filing and certifies that:
1. The name and jurisdiction of formation or organization of each of the limited liability companies or other
business entities which is to merger are:
|
|
|
|
|
|
|
Name
|
|
Jurisdiction
|
|
|
BHN-CFNC Holdings, LLC
|
|
|
Delaware
|
|
|
Bright House Networks, LLC
|
|
|
Delaware
|
|
2. An agreement of merger has been approved and executed by each of the domestic limited liability companies or other business
entities which is to merge.
3. The name of the surviving limited liability company is Bright House Networks, LLC
4. The merger shall become effective on December 31, 2003.
5. The agreement of merger is on file at a place of business of the surviving limited liability company which is c/o Sabin, Bermant & Gould LLP
located at Four Times Square: New York, New York 10036.
6. A copy of the agreement of merger will be furnished by the surviving limited liability
company, on request and without cost, to any member of any domestic limited liability company or any person holding an interest in any other business entity which is to merge.
IN WITNESS WHEREOF, this Certificate of Merger has been duly executed as of this 12
th
day of December, 2003, and is being filed in accordance with Sec. 18-209 of the Act by an authorized person of the surviving limited liability company in the merger.
|
|
|
|
|
Bright House Networks, LLC
|
|
|
|
|
By:
|
|
/s/ Steven A. Miron
|
|
|
|
Steven A. Miron
President
|
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 03:03 PM 01/14/2010
FILED 02:20 PM 01/14/2010
SRV 100039793 - 3545397 FILE
|
STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The name of the limited liability company is
BRIGHT HOUSE NETWORKS, LLC
2. The Registered Office of the limited liability company in the State of Delaware is changed to 2711 Centerville Road, Suite 400 (street), in the City of
Wilmington, Zip Code 19808. The name of the Registered Agent at such address upon whom process against this limited liability company may be served is Corporation Service Company
|
|
|
|
|
By:
|
|
/s/ S. I. Newhouse, Jr.
|
|
|
|
Authorized Person
|
|
|
|
|
Name:
|
|
S. I. Newhouse, Jr.
|
|
|
|
Print or Type
|
Exhibit 3.500
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIGHT HOUSE
NETWORKS, LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Charter Communications Operating, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Bright House Networks, LLC, a Delaware limited liability company (the
“
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Bright House Networks, LLC. The
business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At
any time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company commenced on the date of the filing of the Certificate
of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing thereof in the office of the Secretary of
State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall
cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such qualification, formation or registration is required or
desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in
which the Company may wish to conduct business.
(h)
Voting
. Each member of the Company (if there is only one member of the
Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a “
Vote
”) for each Unit (as defined
in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of any document or agreement (including this Agreement
or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than
the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
3
(8) sell all or substantially all of the assets of the Company;
(9) change the status of the Company from one in which management is vested in the Manager to one in which management is vested in the
members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company
property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the
Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any person who
is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
4
(b)
Election and Term
. The President, Treasurer and Secretary shall, and the Chairman of
the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and agents as such person shall deem desirable, who shall hold office at
the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or
the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the
directors then in office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with
or without cause, for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and
5
disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other
valuable effects of the Company in the name and to the credit of the Company in depositories designated by the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as shall be assigned, and shall exercise such
powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of Officers
. The officers, to the extent of
their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the officers
taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time. The Members are not
required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately increased). Each Member
shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this Section 6, are
intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the Members shall not have
any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of Members
. Other
persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited Liability
. Except
as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order of a court, solely by
reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise existing at law or in
equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or prohibited solely by
virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company policy, each Member and
Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in, activities and business
ventures of every type and description, including activities and business ventures in direct competition with the Company.
6
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be divided into and represented by percentage
interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in this Agreement. References in this
Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and other assets as shall be
determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests. Liquidating distributions
shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted Capital Account
Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after payment of or due
provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a Member shall have
no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in the Company if
such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses of the Company
shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting by unanimity
of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the
7
Act. In winding up the business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of
the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the
Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than
one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the
prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the
Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or
8
Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise performed
on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority
conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the
debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that
the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a director
of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent
relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none of the
Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member,
Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any such
affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified
9
Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may
be evidenced by a certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend
that causes such limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other
applicable jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with
any term or provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this
10
Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited
liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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CHARTER COMMUNICATIONS OPERATING, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Bright House Networks, LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
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Senior Vice President/Operations
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Jeff Chen
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
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Vice President/Corporate Financial Planning
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Kristi Kramersmeier
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Vice President/New Product Development
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John Ogden
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Vice President/Corporate Finance
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-2-
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OTHER OFFICERS
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Kevin Hyman
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EVP/Cable Operations
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Craig Cowden
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Chief Network Officer & SVP Enterprise Solutions
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Brad Freathy
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VP /Enterprise Sales & Solutions Engineering
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Paul Woelk
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VP/Finance & Business, NEO and Enterprise Solutions
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Jose Valdez
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VP/Voice & Systems Engineering and Operations
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Mark Swanson
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VP/Managed Voice Services
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John Hendrickson
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VP/Network & Video Engineering Operations
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John Dickinson
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VP/Network Strategy & Architecture
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Jake Perlman
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Chief Information Officer
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Pam Hagan
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VP/Corporate Human Resources
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Karen Blackburn
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VP/Human Resources - Florida
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Marva Johnson
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VP/Corporate Government & Industry Affairs
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Kimberly Maki
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VP/Corporate Communications
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Alan Mason
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VP/News & Local Programming
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Todd Stewart
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VP/Corporate Advertising Sales
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Mike Dixon
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VP/Regional/National Sales
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Dave Hall
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VP/Local/Zone Sales
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Steve Colafrancesco
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VP/Corporate Marketing
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Cathy Schelb
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VP/Marketing
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Michelle Stuart
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VP/Marketing
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Bill Futch
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VP/Corporate Customer Care
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Joan Scazarro
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VP/Customer Care Operations
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John Doctor
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VP/Corporate Field Operations
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Scott Laris
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VP/Corporate Plant Engineering
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Dave Marvin
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VP/Corporate Property Solutions
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Kevin Hord
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VP/Corporate Procurement & Materials Management
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Roberta Segers
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VP/Billing and CRM Systems
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Josh Ebert
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VP/SMB Sales and Operations
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DeLynda Faudel
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VP/Sales Operations
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A-1
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BHN - Florida
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Mike Robertson
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SVP/Florida Operations
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Michel Champagne
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VP/GM – Central Operations
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Carlos del Castillo
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VP/G M – Hills borough
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John Dosher
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VP/GM – Western Operations
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Paul Hanson
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VP/GM – Northeast Operations
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Allen Smith
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VP/SMB Operations
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Bill Brennan
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VP/Financial Operations – Florida
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Sabrina Calhoun
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VP/Engineering: Construction and Design
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Bakersfield
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Danielle Wade
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VP/General Manager
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Birmingham
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Scott Horne
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VP/General Manager
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Tammy Strong
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VP/Marketing & Sales
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Detroit
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Robert McCann
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Division President
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Dan Dinsmore
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VP/Marketing
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Cynthia Severts
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VP/Technical Operations
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Indianapolis
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Don Williams
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VP/General Manager
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A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
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Members
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Economic Interest
Percentage
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Charter Communications Operating, LLC
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100%
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Total
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100%
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B-1
Exhibit 3.501
CERTIFICATE OF FORMATION
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (ALABAMA), LLC
1. The name of the limited liability company is Bright House Networks Information
Services (Alabama), LLC.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of Bright House Networks Information Services (Alabama), LLC
this 23rd day of August, 2004.
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/s/ Arthur J. Steinhauer
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Arthur J. Steinhauer
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Authorized Person
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State of Delaware
Secretary of State
Division of Corporations
Delivered 06:31 PM 08/23/2004
FILED 06:31 PM 08/23/2004
SRV 040615969 – 3845984 FILE
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State of Delaware
Secretary of State
Division of Corporations
Delivered 03:02 PM 01/14/2010
FILED 02:13 PM 01/14/2010
SRV 100039740 – 3845984 FILE
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STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The
limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The
name of the limited liability company is
BRIGHT HOUSE NETWORKS INFORMATION SERVICES (ALABAMA), LLC
2. The Registered Office of the limited liability company in the State of Delaware is changed to
2711 Centerville Road, Suite 400
(street), in the City of
Wilmington
, Zip Code
19808
. The name of the Registered Agent at such address upon whom process against this limited liability company may be served is
Corporation Service Company
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By:
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/s/ S. I. Newhouse, Jr.
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Authorized Person
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Name:
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S. I. Newhouse, Jr.
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Print or Type
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Exhibit 3.502
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (ALABAMA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Bright House Networks Information Services (Alabama), LLC, a Delaware limited
liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Bright House Networks
Information Services (Alabama), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than
the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
3
(9) change the status of the Company from one in which management is vested in the Manager to
one in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment
Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or
services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third
party, any Member, or any affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term
. The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or
the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by
the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
5
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers
. The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on Exhibit B hereto as amended from time to time. The
Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing
written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the
Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s
limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as
applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the
assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no
recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of
fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or
completed claim, action, suit or proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of
the fact that such person is or was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company,
any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of
the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such
claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions
constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public
accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager,
director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent
constituted bad faith, willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification
provided under this Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance
on the Agreement
. To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to
any Member or other person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good
faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the
10
extent it may be negated or modified through the provisions of a limited liability company’s Limited
Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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BRIGHT HOUSE NETWORKS INFORMATION SERVICES (ALABAMA), LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Bright House Networks Information Services (Alabama), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
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Senior Vice President/Operations
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Jeff Chen
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
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Vice President/Corporate Financial Planning
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Kristi Kramersmeier
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Vice President/New Product Development
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John Ogden
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Vice President/Corporate Finance
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OTHER OFFICERS
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Kevin Hyman
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EVP/Cable Operations
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Craig Cowden
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Chief Network Officer & SVP Enterprise Solutions
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Brad Freathy
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VP /Enterprise Sales & Solutions Engineering
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Paul Woelk
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VP/Finance & Business, NEO and Enterprise Solutions
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Jose Valdez
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VP/Voice & Systems Engineering and Operations
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Mark Swanson
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VP/Managed Voice Services
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John Hendrickson
|
|
VP/Network & Video Engineering Operations
|
|
John Dickinson
|
|
VP/Network Strategy & Architecture
|
|
Jake Perlman
|
|
Chief Information Officer
|
|
Pam Hagan
|
|
VP/Corporate Human Resources
|
|
Karen Blackburn
|
|
VP/Human Resources - Florida
|
|
Marva Johnson
|
|
VP/Corporate Government & Industry Affairs
|
|
Kimberly Maki
|
|
VP/Corporate Communications
|
|
Alan Mason
|
|
VP/News & Local Programming
|
|
Todd Stewart
|
|
VP/Corporate Advertising Sales
|
|
Mike Dixon
|
|
VP/Regional/National Sales
|
|
Dave Hall
|
|
VP/Local/Zone Sales
|
|
Steve Colafrancesco
|
|
VP/Corporate Marketing
|
|
Cathy Schelb
|
|
VP/Marketing
|
|
Michelle Stuart
|
|
VP/Marketing
|
|
Bill Futch
|
|
VP/Corporate Customer Care
|
|
Joan Scazarro
|
|
VP/Customer Care Operations
|
|
John Doctor
|
|
VP/Corporate Field Operations
|
|
Scott Laris
|
|
VP/Corporate Plant Engineering
|
|
Dave Marvin
|
|
VP/Corporate Property Solutions
|
|
Kevin Hord
|
|
VP/Corporate Procurement & Materials Management
|
|
Roberta Segers
|
|
VP/Billing and CRM Systems
|
|
Josh Ebert
|
|
VP/SMB Sales and Operations
|
|
DeLynda Faudel
|
|
VP/Sales Operations
|
A-1
|
|
|
|
|
BHN - Florida
|
|
|
|
Mike Robertson
|
|
SVP/Florida Operations
|
|
Michel Champagne
|
|
VP/GM – Central Operations
|
|
Carlos del Castillo
|
|
VP/G M – Hills borough
|
|
John Dosher
|
|
VP/GM – Western Operations
|
|
Paul Hanson
|
|
VP/GM – Northeast Operations
|
|
Allen Smith
|
|
VP/SMB Operations
|
|
Bill Brennan
|
|
VP/Financial Operations – Florida
|
|
Sabrina Calhoun
|
|
VP/Engineering: Construction and Design
|
|
|
|
|
Bakersfield
|
|
|
|
Danielle Wade
|
|
VP/General Manager
|
|
|
|
|
Birmingham
|
|
|
|
Scott Horne
|
|
VP/General Manager
|
|
Tammy Strong
|
|
VP/Marketing & Sales
|
|
|
|
|
Detroit
|
|
|
|
Robert McCann
|
|
Division President
|
|
Dan Dinsmore
|
|
VP/Marketing
|
|
Cynthia Severts
|
|
VP/Technical Operations
|
|
|
|
|
Indianapolis
|
|
|
|
Don Williams
|
|
VP/General Manager
|
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
Bright House Networks, LLC
|
|
100%
|
|
|
|
|
|
Total
|
|
100%
|
Exhibit 3.503
CERTIFICATE OF FORMATION
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (CALIFORNIA), LLC
1. The name of the limited liability company is Bright House Networks Information
Services (California), LLC.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of Bright House Networks Information Services (California),
LLC this 23rd day of August, 2004.
|
|
|
/s/ Arthur J. Steinhauer
|
|
Arthur J. Steinhauer
|
|
Authorized Person
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:34 PM 08/23/2004
FILED 06:34 PM 08/23/2004
SRV 040615973 – 3845989 FILE
State of Delaware
Secretary of State
Division of Corporations
Delivered 03:03 PM 01/14/2010
FILED 02:17 PM 01/14/2010
SRV 100039774 – 3845989 FILE
STATE OF DELAWARE
CERTIFICATE OF
CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The name of the limited liability company is
BRIGHT HOUSE NETWORKS INFORMATION SERVICES (CALIFORNIA), LLC
2. The Registered Office of the limited liability
company in the State of Delaware is changed to
2711 Centerville Road, Suite 400
(street), in the City of
Wilmington
, Zip Code
19808
. The name of the Registered
Agent at such address upon whom process against this limited liability company may be served is
Corporation Service Company
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ S. I. Newhouse, Jr.
|
|
|
|
|
|
|
|
Authorized Person
|
|
|
|
|
|
Name:
|
|
S. I. Newhouse, Jr.
|
|
|
|
|
|
|
|
Print or Type
|
Exhibit 3.504
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (CALIFORNIA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Bright House Networks Information Services (California), LLC, a Delaware limited
liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Bright House Networks
Information Services (California), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
3
(9) change the status of the Company from one in which management is vested in the Manager to
one in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term
. The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as
from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by
the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
5
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers
. The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time.
The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704-1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to
dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims
against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability
company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all
or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and
shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of
additional or substitute Members to the Company shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute
Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a
disregarded entity for U.S. federal income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate
from its owner and its activities be treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S.
federal income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best
interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the
property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as
expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly.
10
For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the
provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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BRIGHT HOUSE NETWORKS INFORMATION SERVICES (CALIFORNIA), LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Bright House Networks Information Services (California), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
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Senior Vice President/Operations
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Jeff Chen
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
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Vice President/Corporate Financial Planning
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Kristi Kramersmeier
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Vice President/New Product Development
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John Ogden
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Vice President/Corporate Finance
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-2-
OTHER OFFICERS
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Kevin Hyman
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EVP/Cable Operations
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Craig Cowden
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Chief Network Officer & SVP Enterprise Solutions
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Brad Freathy
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VP /Enterprise Sales & Solutions Engineering
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Paul Woelk
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VP/Finance & Business, NEO and Enterprise Solutions
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Jose Valdez
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VP/Voice & Systems Engineering and Operations
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Mark Swanson
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VP/Managed Voice Services
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John Hendrickson
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VP/Network & Video Engineering Operations
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John Dickinson
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VP/Network Strategy & Architecture
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Jake Perlman
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Chief Information Officer
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Pam Hagan
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VP/Corporate Human Resources
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Karen Blackburn
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VP/Human Resources - Florida
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Marva Johnson
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VP/Corporate Government & Industry Affairs
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Kimberly Maki
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VP/Corporate Communications
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Alan Mason
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VP/News & Local Programming
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Todd Stewart
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VP/Corporate Advertising Sales
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Mike Dixon
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VP/Regional/National Sales
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Dave Hall
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VP/Local/Zone Sales
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Steve Colafrancesco
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VP/Corporate Marketing
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Cathy Schelb
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VP/Marketing
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Michelle Stuart
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VP/Marketing
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Bill Futch
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VP/Corporate Customer Care
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Joan Scazarro
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VP/Customer Care Operations
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John Doctor
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VP/Corporate Field Operations
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Scott Laris
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VP/Corporate Plant Engineering
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Dave Marvin
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VP/Corporate Property Solutions
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Kevin Hord
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VP/Corporate Procurement & Materials Management
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Roberta Segers
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VP/Billing and CRM Systems
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Josh Ebert
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VP/SMB Sales and Operations
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DeLynda Faudel
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VP/Sales Operations
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A-1
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|
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BHN - Florida
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Mike Robertson
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SVP/Florida Operations
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Michel Champagne
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VP/GM – Central Operations
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Carlos del Castillo
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VP/G M – Hills borough
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John Dosher
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VP/GM – Western Operations
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Paul Hanson
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VP/GM – Northeast Operations
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Allen Smith
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VP/SMB Operations
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Bill Brennan
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VP/Financial Operations – Florida
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Sabrina Calhoun
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VP/Engineering: Construction and Design
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Bakersfield
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Danielle Wade
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VP/General Manager
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Birmingham
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Scott Horne
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VP/General Manager
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Tammy Strong
|
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VP/Marketing & Sales
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Detroit
|
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|
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Robert McCann
|
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Division President
|
|
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Dan Dinsmore
|
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VP/Marketing
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|
|
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Cynthia Severts
|
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VP/Technical Operations
|
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Indianapolis
|
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|
|
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|
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Don Williams
|
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VP/General Manager
|
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
Bright House Networks, LLC
|
|
100%
|
|
|
|
|
|
Total
|
|
100%
|
Exhibit 3.505
CERTIFICATE OF FORMATION
OF
TIME WARNER CABLE
INFORMATION SERVICES (FLORIDA), LLC
This Certificate of Formation of Time Warner Cable Information Services (Florida), LLC (the
“Company”) is being executed by the undersigned for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act.
|
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1.
|
The name of the Company is Time Warner Cable Information Services (Florida), LLC.
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|
|
2.
|
The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. The name of the Company’s registered agent at such address is The
Corporation Trust Company.
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|
|
3.
|
This Certificate of Formation shall be effective at the time of filing with the Delaware Secretary of State.
|
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has executed this Certificate of Formation this 20th day of
November, 2001.
|
|
|
/s/ Jill A. Clarke
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Jill A. Clarke
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JC\SubAff\Incorp\LLC\TWCInfFL.Crt
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|
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|
|
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 11/21/2001
010593783 – 3459685
|
CERTIFICATE OF AMENDMENT
OF
TIME WARNER CABLE
INFORMATION SERVICES (FLORIDA), LLC
|
|
1.
|
The name of the limited liability company is Time Warner Cable Information Services (Florida), LLC.
|
|
|
2.
|
The Certificate of Formation of the limited liability company is hereby amended as follows:
|
The name of the
limited liability company is hereby amended from Time Warner Cable Information Services (Florida), LLC to Bright House Networks Information Services (Florida), LLC.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of Time Warner Cable Information Services (Florida), LLC this
7th day of April, 2003.
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|
|
/s/ Steven A. Miron
|
|
Steven A. Miron
|
|
Authorized Person
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 04:37 PM 04/22/2003 FILED 04:25 PM 04/22/2003
SRV 030261545 – 3459685 FILE
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|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 03:01 PM 01/14/2010
FILED 02:11 PM 01/14/2010
SRV 100039720 – 3459685 FILE
|
STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The
limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
|
1.
|
The name of the limited liability company is
|
BRIGHT HOUSE NETWORKS INFORMATION SERVICES (FLORIDA), LLC
|
2.
|
The Registered Office of the limited liability company in the State of Delaware is changed to
2711 Centerville Road, Suite 400
|
(street), in the City of
Wilmington
,
Zip Code
19808
. The name of the Registered Agent at such address upon whom process
against this limited liability company may be served is
Corporation Service Company
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|
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|
|
By:
|
|
/s/ S. I. Newhouse, Jr.
|
|
|
|
Authorized Person
|
|
|
|
|
|
Name:
|
|
S. I. Newhouse, Jr.
|
|
|
|
Print or Type
|
Exhibit 3.506
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (FLORIDA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Bright House Networks Information Services (Florida), LLC, a Delaware limited
liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Bright House Networks
Information Services (Florida), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
3
(9) change the status of the Company from one in which management is vested in the Manager to
one in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term
. The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as
from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by
the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
5
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers
. The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time.
The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to
dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims
against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability
company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all
or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and
shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of
additional or substitute Members to the Company shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute
Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a
disregarded entity for U.S. federal income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate
from its owner and its activities be treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S.
federal income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best
interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the
property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as
expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly.
10
For purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the
provisions of a limited liability company’s Limited Liability Company Agreement.
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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BRIGHT HOUSE NETWORKS INFORMATION SERVICES (FLORDIA), LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Bright House Networks Information Services (Florida), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
|
|
Senior Vice President/Corporate Strategy & Business Development
|
|
|
|
|
Mike Robertson
|
|
Senior Vice President/Operations
|
|
|
|
|
Jeff Chen
|
|
Senior Vice President/Advanced Technology
|
|
|
|
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Mark Wasserstrom
|
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Vice President/Corporate Financial Planning
|
|
|
|
|
Kristi Kramersmeier
|
|
Vice President/New Product Development
|
|
|
|
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John Ogden
|
|
Vice President/Corporate Finance
|
-2-
OTHER OFFICERS
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|
|
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|
|
Kevin Hyman
|
|
EVP/Cable Operations
|
|
|
|
|
Craig Cowden
|
|
Chief Network Officer & SVP Enterprise Solutions
|
|
|
|
|
Brad Freathy
|
|
VP /Enterprise Sales & Solutions Engineering
|
|
|
|
|
Paul Woelk
|
|
VP/Finance & Business, NEO and Enterprise Solutions
|
|
|
|
|
Jose Valdez
|
|
VP/Voice & Systems Engineering and Operations
|
|
|
|
|
Mark Swanson
|
|
VP/Managed Voice Services
|
|
|
|
|
John Hendrickson
|
|
VP/Network & Video Engineering Operations
|
|
|
|
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John Dickinson
|
|
VP/Network Strategy & Architecture
|
|
|
|
|
Jake Perlman
|
|
Chief Information Officer
|
|
|
|
|
Pam Hagan
|
|
VP/Corporate Human Resources
|
|
|
|
|
Karen Blackburn
|
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VP/Human Resources - Florida
|
|
|
|
|
Marva Johnson
|
|
VP/Corporate Government & Industry Affairs
|
|
|
|
|
Kimberly Maki
|
|
VP/Corporate Communications
|
|
|
|
|
Alan Mason
|
|
VP/News & Local Programming
|
|
|
|
|
Todd Stewart
|
|
VP/Corporate Advertising Sales
|
|
|
|
|
Mike Dixon
|
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VP/Regional/National Sales
|
|
|
|
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Dave Hall
|
|
VP/Local/Zone Sales
|
|
|
|
|
Steve Colafrancesco
|
|
VP/Corporate Marketing
|
|
|
|
|
Cathy Schelb
|
|
VP/Marketing
|
|
|
|
|
Michelle Stuart
|
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VP/Marketing
|
|
|
|
|
Bill Futch
|
|
VP/Corporate Customer Care
|
|
|
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|
Joan Scazarro
|
|
VP/Customer Care Operations
|
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|
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John Doctor
|
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VP/Corporate Field Operations
|
|
|
|
|
Scott Laris
|
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VP/Corporate Plant Engineering
|
|
|
|
|
Dave Marvin
|
|
VP/Corporate Property Solutions
|
|
|
|
|
Kevin Hord
|
|
VP/Corporate Procurement & Materials Management
|
|
|
|
|
Roberta Segers
|
|
VP/Billing and CRM Systems
|
|
|
|
|
Josh Ebert
|
|
VP/SMB Sales and Operations
|
|
|
|
|
DeLynda Faudel
|
|
VP/Sales Operations
|
A-1
|
|
|
|
|
BHN - Florida
|
|
|
|
|
|
|
Mike Robertson
|
|
SVP/Florida Operations
|
|
|
|
|
Michel Champagne
|
|
VP/GM – Central Operations
|
|
|
|
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Carlos del Castillo
|
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VP/G M – Hills borough
|
|
|
|
|
John Dosher
|
|
VP/GM – Western Operations
|
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|
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|
Paul Hanson
|
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VP/GM – Northeast Operations
|
|
|
|
|
Allen Smith
|
|
VP/SMB Operations
|
|
|
|
|
Bill Brennan
|
|
VP/Financial Operations – Florida
|
|
|
|
|
Sabrina Calhoun
|
|
VP/Engineering: Construction and Design
|
|
|
|
|
Bakersfield
|
|
|
|
|
|
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Danielle Wade
|
|
VP/General Manager
|
|
|
|
|
Birmingham
|
|
|
|
|
|
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Scott Horne
|
|
VP/General Manager
|
|
|
|
|
Tammy Strong
|
|
VP/Marketing & Sales
|
|
|
|
|
Detroit
|
|
|
|
|
|
|
Robert McCann
|
|
Division President
|
|
|
|
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Dan Dinsmore
|
|
VP/Marketing
|
|
|
|
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Cynthia Severts
|
|
VP/Technical Operations
|
|
|
|
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Indianapolis
|
|
|
|
|
|
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Don Williams
|
|
VP/General Manager
|
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
Bright House Networks, LLC
|
|
100%
|
|
|
|
|
|
Total
|
|
100%
|
Exhibit 3.507
CERTIFICATE OF FORMATION
OF
BRIGHT HOUSE NETWORKS INFORMATION SERVICES (INDIANA), LLC
1. The name of the limited liability company is Bright House Networks Information Services (Indiana), LLC.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the
undersigned have executed this Certificate of Formation of Bright House Networks Information Services (Indiana), LLC this 23rd day of August, 2004.
|
|
|
/s/ Arthur J. Steinhauer
|
|
Arthur J. Steinhauer
|
|
Authorized Person
|
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:35 PM 08/23/2004
FILED 06:35 PM 08/23/2004
SRV 040615977 – 3845991 FILE
|
|
|
|
|
|
|
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 03:03 PM 01/14/2010
FILED 02:19 PM
01/14/2010
SRV 100039783 – 3845991 FILE
|
STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The
limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
|
1.
|
The name of the limited liability company is
|
BRIGHT HOUSE NETWORKS INFORMATION SERVICES (INDIANA), LLC
|
2.
|
The Registered Office of the limited liability company in the State of Delaware is changed to
2711 Centerville Road, Suite 400
|
(street), in the City of
Wilmington
,
Zip Code
19808
. The name of the Registered Agent at such address upon whom
process against this limited liability company may be served is
Corporation Service Company
|
|
|
|
|
By:
|
|
/s/ S. I. Newhouse, Jr.
|
|
|
|
Authorized Person
|
|
|
|
|
|
Name:
|
|
S. I. Newhouse, Jr.
|
|
|
|
Print or Type
|
Exhibit 3.508
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (INDIANA), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Bright House Networks Information Services (Indiana), LLC, a Delaware limited
liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Bright House Networks
Information Services (Indiana), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than
the Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7) approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
3
(9) change the status of the Company from one in which management is vested in the Manager to one
in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment
Company Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or
services from any person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third
party, any Member, or any affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars
($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any
company controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term
. The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or the President, and who shall have such authority and shall perform such duties as
from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by
the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
5
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers
. The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time.
The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing written notice by registered or certified mail of the Company’s intention to
dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the Company, (iii) the making of reasonable provisions for payment of contingent claims
against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the
satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION
11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability
company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all
or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and
shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of
additional or substitute Members to the Company shall be accomplished by the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute
Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a
disregarded entity for U.S. federal income tax purposes. So long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate
from its owner and its activities be treated as a division of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S.
federal income tax purposes, and the Members shall not take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations
pursuant to subchapter K of the Internal Revenue Code of 1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as applicable, in good faith, determined that such course of conduct was in the best
interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the assets of the Company for return of such Member’s investment, and if the
property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no recourse against the Company, the other Members or their affiliates, except as
expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or completed claim, action, suit or proceeding to which a Member, a Manager, a
director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of the fact that such person is or was engaged in activities on behalf of the
Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified
Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of the Company, their respective affiliates, and any such Specified Agents
against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such claim, action, suit or proceeding;
provided
,
however
, that none
of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions constituting bad faith, willful misconduct, or fraud. Any act or omission by any such
Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public accountants selected with reasonable care by such Member, Manager, director, officer, or any
such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager, director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or proceeding by judgment, order or settlement shall not, of itself,
create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent constituted bad faith, willful misconduct or fraud under this
Agreement.
(d)
Limitation on Indemnification
. Any indemnification provided under this Section 14 shall be recoverable only
out of the assets of the Company and not from the Members.
(e)
Reliance on the Agreement
. To the extent that, at law or in equity,
a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other person bound by this Agreement, such Member,
Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
10
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date first above
written.
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COMPANY
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BRIGHT HOUSE NETWORKS INFORMATION SERVICES (INDIANA), LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Bright House Networks Information Services (Indiana), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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|
Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
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Senior Vice President, Sales and Retention
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Allan Singer
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Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
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Senior Vice President/Operations
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Jeff Chen
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
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Vice President/Corporate Financial Planning
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Kristi Kramersmeier
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Vice President/New Product Development
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John Ogden
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Vice President/Corporate Finance
|
-2-
OTHER OFFICERS
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Kevin Hyman
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EVP/Cable Operations
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Craig Cowden
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Chief Network Officer & SVP Enterprise Solutions
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Brad Freathy
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VP /Enterprise Sales & Solutions Engineering
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Paul Woelk
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VP/Finance & Business, NEO and Enterprise Solutions
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Jose Valdez
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VP/Voice & Systems Engineering and Operations
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Mark Swanson
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VP/Managed Voice Services
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John Hendrickson
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VP/Network & Video Engineering Operations
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John Dickinson
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VP/Network Strategy & Architecture
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Jake Perlman
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Chief Information Officer
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Pam Hagan
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VP/Corporate Human Resources
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Karen Blackburn
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VP/Human Resources - Florida
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Marva Johnson
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VP/Corporate Government & Industry Affairs
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Kimberly Maki
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VP/Corporate Communications
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Alan Mason
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VP/News & Local Programming
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Todd Stewart
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VP/Corporate Advertising Sales
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Mike Dixon
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VP/Regional/National Sales
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Dave Hall
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VP/Local/Zone Sales
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Steve Colafrancesco
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VP/Corporate Marketing
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Cathy Schelb
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VP/Marketing
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Michelle Stuart
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VP/Marketing
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Bill Futch
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VP/Corporate Customer Care
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Joan Scazarro
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VP/Customer Care Operations
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John Doctor
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VP/Corporate Field Operations
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Scott Laris
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VP/Corporate Plant Engineering
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Dave Marvin
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VP/Corporate Property Solutions
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Kevin Hord
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VP/Corporate Procurement & Materials Management
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Roberta Segers
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VP/Billing and CRM Systems
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Josh Ebert
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VP/SMB Sales and Operations
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DeLynda Faudel
|
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VP/Sales Operations
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A-1
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BHN - Florida
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Mike Robertson
|
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SVP/Florida Operations
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Michel Champagne
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VP/GM – Central Operations
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Carlos del Castillo
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VP/G M – Hills borough
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John Dosher
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VP/GM – Western Operations
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Paul Hanson
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VP/GM – Northeast Operations
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Allen Smith
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VP/SMB Operations
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Bill Brennan
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VP/Financial Operations – Florida
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Sabrina Calhoun
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VP/Engineering: Construction and Design
|
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Bakersfield
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Danielle Wade
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VP/General Manager
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Birmingham
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Scott Horne
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VP/General Manager
|
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Tammy Strong
|
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VP/Marketing & Sales
|
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Detroit
|
|
|
|
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|
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Robert McCann
|
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Division President
|
|
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|
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Dan Dinsmore
|
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VP/Marketing
|
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|
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Cynthia Severts
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VP/Technical Operations
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Indianapolis
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|
|
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|
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Don Williams
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VP/General Manager
|
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
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|
|
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Members
|
|
Economic Interest
Percentage
|
|
Bright House Networks, LLC
|
|
100%
|
|
|
|
|
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Total
|
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100%
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Exhibit 3.509
CERTIFICATE OF FORMATION
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (MICHIGAN), LLC
1. The name of the limited liability company is Bright House Networks Information
Services (Michigan), LLC.
2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle. The name of Its registered agent at such address is The Corporation Trust Company,
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of Bright House Networks Information Services (Michigan), LLC
this 23rd day of August, 2004.
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/s/ Arthur J. Steinhauer
Arthur J. Steinhauer
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Authorized Person
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 06:33 PM 08/23/2004
FILED 06:33 PM 08/23/2004
SRV 040615971 – 3845986 FILE
STATE OF DELAWARE
CERTIFICATE OF CHANGE OF AGENT
AMENDMENT OF LIMITED LIABILITY COMPANY
The
limited liability company organized and existing under the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
1. The
name of the limited liability company is
BRIGHT HOUSE NETWORKS INFORMATION SERVICES (MICHIGAN), LLC
2. The Registered Office of the limited liability company in the State of Delaware is changed to
2711 Centerville Road, Suite 400
(street), in the City of
Wilmington
, Zip Code
19808
. The name of the Registered Agent at such address upon whom process against this limited liability company
may be served is
Corporation Service
Company
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By:
|
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/s/ S. I. Newhouse, Jr.
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|
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Authorized Person
|
|
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|
|
|
Name:
|
|
S. I. Newhouse, Jr.
|
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Print or Type
|
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State of Delaware
Secretary of State
Division of Corporations
Delivered 03:03 PM 01/14/2010
FILED 02:15 PM 01/14/2010
SRV 100039757 – 3845986 FILE
|
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Exhibit 3.510
EXECUTION VERSION
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIGHT HOUSE
NETWORKS INFORMATION SERVICES (MICHIGAN), LLC
(a Delaware Limited Liability Company)
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time, this “
Agreement
”) is entered
into as of May 18, 2016, by and among Bright House Networks, LLC, a Delaware limited liability company (the “
Member
”), as the sole member of Bright House Networks Information Services (Michigan), LLC, a Delaware limited
liability company (the “
Company
”), the Company, and Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC), as the Manager (as defined in Section 4(a)(i) hereof).
The Company was formed as a Delaware limited liability company pursuant to a Certificate of Formation filed with the Secretary of State of the
State of Delaware; and
The Member desires to continue the Company as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C. § 18-101,
et seq
., as amended from time to time (the “
Act
”), and to amend and restate any and all prior limited liability company agreements of the Company as follows:
SECTION 1.
General
.
(a)
Formation
. Effective as of the date and time of filing of the Certificate of Formation in the office of the Secretary of State of
the State of Delaware, the Company was formed as a limited liability company under the Act. Except as expressly provided herein, the rights and obligations of the Members (as defined in Section 1(h)) in connection with the regulation and
management of the Company shall be governed by the Act.
(b)
Name
. The name of the Company shall be Bright House Networks
Information Services (Michigan), LLC. The business of the Company shall be conducted under such name or any other name or names that the Manager shall determine from time to time.
(c)
Registered Agent
. The address of the registered office of the Company in the State of Delaware shall be c/o Corporation Service
Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Company in the State of Delaware shall be Corporation Service Company, 2711 Centerville Road, Suite
400, Wilmington, Delaware 19808. The registered office or registered agent of the Company may be changed from time to time by the Manager.
(d)
Principal Office
. The principal place of business of the Company shall be at 12405 Powerscourt Drive, St. Louis, MO 63131. At any
time, the Manager may change the location of the Company’s principal place of business.
(e)
Term
. The term of the Company
commenced on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware, and the Company will have perpetual existence until dissolved and its affairs wound up in accordance with the
provisions of this Agreement.
(f)
Certificate of Formation
. The execution of the Certificate of Formation and the filing
thereof in the office of the Secretary of State of the State of Delaware are hereby ratified, confirmed and approved.
(g)
Qualification; Registration
. The Manager shall cause the Company to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Company transacts business and in which such
qualification, formation or registration is required or desirable. The Manager, as an authorized person within the meaning of the Act, shall execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for
the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
(h)
Voting
. Each member
of the Company (if there is only one member of the Company, the “
Member
”; or if there are more than one, the “
Members
”) shall have one vote in respect of any vote, approval, consent or ratification of any action (a
“
Vote
”) for each Unit (as defined in Section 7) held by such Member. Any vote, approval, consent or ratification as to any matter under the Act or this Agreement by a Member may be evidenced by such Member’s execution of
any document or agreement (including this Agreement or an amendment hereto) which would otherwise require as a precondition to its effectiveness such vote, approval, consent or ratification of the Members.
SECTION 2.
Purposes
. The Company was formed for the object and purpose of, and the nature of the business to be conducted by the
Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
SECTION 3.
Powers
. The Company shall have all powers necessary, appropriate or incidental to the accomplishment of its purposes and all other powers conferred upon a limited liability company pursuant to the Act.
SECTION 4.
Management
.
(a)
Management by Manager
.
i) The Member hereby elects Charter Communications, Inc., a Delaware corporation (formerly known as CCH I, LLC) (“
CCI
”), or
its successor-in-interest, as the Company’s manager (the “
Manager
”). CCI shall be the Manager until a simple majority of the Votes elects otherwise. No additional person may be elected as Manager without the approval of a
simple majority of the Votes (for purposes of this Agreement, to the extent the context requires, the term “person” refers to both individuals and entities). Except as otherwise required by applicable law and as provided below with respect
to the Manager’s board of directors (the “
Board
”), the powers of the Company shall at all times be exercised by or under the authority of, and the business, property and affairs of the Company shall be managed by, or under the
direction of, the Manager. The Manager is a “manager” of the Company within the meaning of the Act. Any person appointed as Manager shall accept its appointment by execution of a consent to this Agreement.
2
ii) The Manager shall be authorized to elect, remove or replace directors and officers of the
Company, who shall have such authority with respect to the management of the business and affairs of the Company as set forth herein or as otherwise specified by the Manager in the resolution or resolutions pursuant to which such directors or
officers were elected.
iii) Except as otherwise required by this Agreement or applicable law, the Manager shall be authorized to execute
or endorse any check, draft, evidence of indebtedness, instrument, obligation, note, mortgage, contract, agreement, certificate or other document on behalf of the Company without the consent of any Member or other person.
iv) No annual or regular meetings of the Manager or the Members are required. The Manager may, by written consent, take any action which it is
otherwise required or permitted to take at a meeting.
v) The Manager’s duty of care in the discharge of its duties to the Company
and the Members is limited to discharging its duties pursuant to this Agreement in good faith, with the care a director of a Delaware corporation would exercise under similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except as required by the Act, no Manager shall be liable for the debts, liabilities and
obligations of the Company, including without limitation any debts, liabilities and obligations under a judgment, decree or order of a court, solely by reason of being a manager of the Company.
(b)
Consent Required
. The affirmative vote, approval, consent or ratification of the Manager shall be required to:
(1) alter the primary purposes of the Company as set forth in Section 2;
(2) issue economic interests in the Company to any Person and admit such Person as a member;
(3) do any act in contravention of this Agreement or any resolution of the members, or cause the Company to engage in any business not
authorized by the Certificate or the terms of this Agreement or that which would make it impossible to carry on the usual course of business of the Company;
(4) enter into or amend any agreement which provides for the management of the business or affairs of the Company by a person other than the
Manager;
(5) change or reorganize the Company into any other legal form;
(6) amend this Agreement;
(7)
approve a merger or consolidation with another person;
(8) sell all or substantially all of the assets of the Company;
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(9) change the status of the Company from one in which management is vested in the Manager to one
in which management is vested in the members or in any other manager, other than as may be delegated to the Board and the officers hereunder;
(10) possess any Company property or assign the rights of the Company in specific Company property for other than a Company purpose;
(11) operate the Company in such a manner that the Company becomes an “investment company” for purposes of the Investment Company
Act of 1940;
(12) except as otherwise provided or contemplated herein, enter into any agreement to acquire property or services from any
person who is a director or officer of the Company;
(13) settle any litigation or arbitration with any third party, any Member, or any
affiliate of any Member, except for any litigation or arbitration brought or defended in the ordinary course of business where the present value of the total settlement amount or damages will not exceed $5,000,000;
(14) materially change any of the tax reporting positions or elections of the Company;
(15) make or commit to any expenditures which, individually or in the aggregate, exceed or are reasonably expected to exceed the
Company’s total budget (as approved by the Manager) by the greater of 5% of such budget or Five Million Dollars ($5,000,000); or
(16) make or incur any secured or unsecured indebtedness which, individually or in the aggregate, exceeds Five Million Dollars ($5,000,000),
provided
that this restriction shall not apply to (i) any refinancing of or amendment to existing indebtedness which does not increase total borrowing, (ii) any indebtedness to (or guarantee of indebtedness of) any company
controlled by or under common control with the Company (“
Intercompany Indebtedness
”), (iii) the pledge of any assets to support any otherwise permissible indebtedness of the Company or any Intercompany Indebtedness or
(iv) indebtedness necessary to finance a transaction or purchase approved by the Manager.
SECTION 5.
Officers
.
(a)
Officers
. The Company shall have such officers as may be necessary or desirable for the business of the Company. The officers may
include a Chairman of the Board, a President, a Treasurer and a Secretary, and such other additional officers, including one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Manager, the Board, the Chairman of the
Board, or the President may from time to time elect. Any two or more offices may be held by the same individual. The prior officers of the Company are hereby removed and the officers of the Company shall be as set forth on
Exhibit A
hereto
(as such Exhibit may be amended by the written consent of the Manager).
(b)
Election and Term
. The President, Treasurer and
Secretary shall, and the Chairman of the Board may, be appointed by and shall hold office at the pleasure of the Manager or the Board. The Manager, the Board, or the President may each appoint such other officers and
4
agents as such person shall deem desirable, who shall hold office at the pleasure of the Manager, the Board, or
the President, and who shall have such authority and shall perform such duties as from time to time shall, subject to the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board, or the President.
(c)
Removal
. Any officer may be removed by the action of the Manager or the action of at least a majority of the directors then in
office, with or without cause, for any reason or for no reason. Any officer other than the Chairman of the Board, the President, the Treasurer or the Secretary may also be removed by the Chairman of the Board or the President, with or without cause,
for any reason or for no reason.
(d) Duties and Authority of Officers.
i)
President
. The President shall be the chief executive officer and (if no other person has been appointed as such) the chief
operating officer of the Company; shall (unless the Chairman of the Board elects otherwise) preside at all meetings of the Members and Board; shall have general supervision and active management of the business and finances of the Company; and shall
see that all orders and resolutions of the Board or the Manager are carried into effect; subject, however, to the right of the directors to delegate any specific powers to any other officer or officers. In the absence of direction by the Manager,
Board, or the Chairman of the Board to the contrary, the President shall have the power to vote all securities held by the Company and to issue proxies therefor. In the absence or disability of the President, the Chairman of the Board (if any) or,
if there is no Chairman of the Board, the most senior available officer appointed by the Manager or the Board shall perform the duties and exercise the powers of the President with the same force and effect as if performed by the President, and
shall be subject to all restrictions imposed upon him.
ii)
Vice President
. Each Vice President, if any, shall perform such duties
as shall be assigned to such person and shall exercise such powers as may be granted to such person by the Manager, the Board or by the President of the Company. In the absence of direction by the Manager, the Board or the President to the contrary,
any Vice President shall have the power to vote all securities held by the Company and to issue proxies therefor.
iii)
Secretary
.
The Secretary shall give, or cause to be given, a notice as required of all meetings of the Members and of the Board. The Secretary shall keep or cause to be kept, at the principal executive office of the Company or such other place as the Board may
direct, a book of minutes of all meetings and actions of directors and Members. The minutes shall show the time and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present
at Board meetings, the number of Votes present or represented at Members’ meetings, and the proceedings thereof. The Secretary shall perform such other duties as may be prescribed from time to time by the Manager or the Board and may be
assisted in his or her duties by any Assistant Secretary who shall have the same powers of the Secretary in absence of the Secretary.
iv)
Treasurer
. The Treasurer shall have custody of the Company funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books of the Company to be maintained for such purpose; shall deposit all moneys and other valuable effects of the Company in the name and to the credit of the Company in depositories designated by
the Manager or the Board; and shall disburse the funds of the Company as may be ordered by the Manager or the Board.
5
v)
Chairman of the Board
. The Chairman of the Board, if any, shall perform such duties as
shall be assigned, and shall exercise such powers as may be granted to him or her by the Manager or the Board.
vi)
Authority of
Officers
. The officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Manager or the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the
Company’s business and the actions of the officers taken in accordance with such powers shall bind the Company.
SECTION 6.
Members
.
(a)
Members
. The Members of the Company shall be set forth on
Exhibit B
hereto as amended from time to time.
The Members are not required to make any capital contribution to the Company; however, the Members may make capital contributions to the Company at any time in their sole discretion (for which its capital account balance shall be appropriately
increased). Each Member shall have a capital account in the Company, the balance of which is to be determined in accordance with the principles of Treasury Regulation Section 1.704- 1(b)(2)(iv). The provisions of this Agreement, including this
Section 6, are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company. Notwithstanding anything to the contrary in this Agreement, the
Members shall not have any duty or obligation to any creditor of the Company to make any contribution to the Company.
(b)
Admission of
Members
. Other persons may be admitted as Members from time to time pursuant to the provisions of this Agreement.
(c)
Limited
Liability
. Except as required by the Act, no Member shall be liable for the debts, liabilities and obligations of the Company, including without limitation any debts, liabilities and obligations of the Company under a judgment, decree or order
of a court, solely by reason of being a member of the Company.
(d)
Competing Activities
. Notwithstanding any duty otherwise
existing at law or in equity, (i) neither a Member nor a Manager of the Company, or any of their respective affiliates, partners, members, shareholders, directors, managers, officers or employees, shall be expressly or impliedly restricted or
prohibited solely by virtue of this Agreement or the relationships created hereby from engaging in other activities or business ventures of any kind or character whatsoever and (ii) except as otherwise agreed in writing or by written Company
policy, each Member and Manager of the Company, and their respective affiliates, partners, members, shareholders, directors, managers, officers and employees, shall have the right to conduct, or to possess a direct or indirect ownership interest in,
activities and business ventures of every type and description, including activities and business ventures in direct competition with the Company.
(e)
Bankruptcy
. Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in the Act) of a Member shall not
cause the Member to cease to be a member of the Company and, upon the occurrence of such an event, the Company shall continue without dissolution.
6
SECTION 7.
Percentage Interests
. The membership interests held by each Member will be
divided into and represented by percentage interests (“
Percentage Interests
”), and there will initially be one class of Percentage Interests. The holders of Percentage Interests will have the voting and economic rights set forth in
this Agreement. References in this Agreement to “Percentage Interests” will include all Percentage Interests outstanding as of the relevant date and the Percentage Interests for each Member (expressed as a percentage) shall be set forth on
Exhibit B
.
SECTION 8.
Distributions
. The Company may from time to time distribute to the Members such amounts in cash and
other assets as shall be determined by the Members acting by simple majority of the Votes. Each such distribution (other than liquidating distributions) shall be divided among the Members in accordance with their respective Economic Interests.
Liquidating distributions shall be made to the Members in accordance with their respective positive capital account balances as adjusted for the allocation of profits and losses as of the record date of any such distribution (“
Adjusted
Capital Account Balance
”). Each Member shall be entitled to look solely to the assets of the Company for the return of such Member’s Adjusted Capital Account Balance. Notwithstanding that the assets of the Company remaining after
payment of or due provision for all debts, liabilities, and obligations of the Company may be insufficient to return the capital contributions or share of the Company’s profits reflected in such Member’s Adjusted Capital Account Balance, a
Member shall have no recourse against the Company or any other Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interest in
the Company if such distribution would violate the Act or any other applicable law.
SECTION 9.
Allocations
. The profits and losses
of the Company shall be allocated to the Members in accordance with their Percentage Interests.
SECTION 10.
Dissolution; Winding
Up
.
(a)
Dissolution
. The Company shall be dissolved upon (i) the adoption of a plan of dissolution by the Members acting
by unanimity of the Votes and the approval of the Manager or (ii) the occurrence of any other event required to cause the dissolution of the Company under the Act.
(b)
Effective Date of Dissolution
. Any dissolution of the Company shall be effective as of the date on which the event occurs giving
rise to such dissolution, but the Company shall not terminate unless and until all its affairs have been wound up and its assets distributed in accordance with the provisions of the Act and the Certificate is cancelled.
(c)
Winding Up
. Upon dissolution of the Company, the Company shall continue solely for the purposes of winding up its business and
affairs as soon as reasonably practicable. Promptly after the dissolution of the Company, the Manager shall immediately commence to wind up the affairs of the Company in accordance with the provisions of this Agreement and the Act. In winding up the
business and affairs of the Company, the Manager may, to the fullest extent permitted by law, take any and all actions that it determines in its sole discretion to be in
7
the best interests of the Members, including, but not limited to, any actions relating to (i) causing
written notice by registered or certified mail of the Company’s intention to dissolve to be mailed to each known creditor of and claimant against the Company, (ii) the payment, settlement or compromise of existing claims against the
Company, (iii) the making of reasonable provisions for payment of contingent claims against the Company and (iv) the sale or disposition of the properties and assets of the Company. It is expressly understood and agreed that a reasonable
time shall be allowed for the orderly liquidation of the assets of the Company and the satisfaction of claims against the Company so as to enable the Manager to minimize the losses that may result from a liquidation.
SECTION 11.
Transfer
. At such time as the Company has more than one Member, no Member shall transfer (whether by sale, assignment,
gift, pledge, hypothecation, mortgage, exchange or otherwise) all or any part of his, her or its limited liability company interest in the Company to any other person without the prior written consent of each of the other Members;
provided
,
however
, that this Section 11 shall not restrict the ability of any Member to transfer (at any time) all or a portion of its limited liability company interest in the Company to another Member. Upon the transfer of a Member’s
limited liability company interest, the Manager shall provide notice of such transfer to each of the other Members and shall amend
Exhibit B
hereto to reflect the transfer.
SECTION 12.
Admission of Additional Members
. The admission of additional or substitute Members to the Company shall be accomplished by
the amendment of this Agreement, including
Exhibit B
, in accordance with the provisions of Section 15(b), pursuant to which amendment each additional or substitute Member shall agree to become bound by this Agreement.
SECTION 13.
Tax Matters
. As of the date of this Agreement, the Company is a disregarded entity for U.S. federal income tax purposes. So
long as the Company is a single-owner entity for U.S. federal income tax purposes, it is intended that for U.S. federal income tax purposes the Company be disregarded as an entity separate from its owner and its activities be treated as a division
of such owner. In the event that the Company has two or more Members for U.S. federal income tax purposes, it is intended that (i) the Company shall be treated as a partnership for U.S. federal income tax purposes, and the Members shall not
take any position or make any election, in a tax return or otherwise, inconsistent therewith and (ii) this Agreement will be amended to provide for appropriate book and tax allocations pursuant to subchapter K of the Internal Revenue Code of
1986, as amended.
SECTION 14.
Exculpation and Indemnification
.
(a)
Exculpation
. Neither the Members, the Manager, the directors of the Company, the officers of the Company, their respective
affiliates, nor any person who at any time shall serve, or shall have served, as a director, officer, employee or other agent of any such Members, Manager, directors, officers, or affiliates and who, in such capacity, shall engage, or shall have
engaged, in activities on behalf of the Company (a “
Specified Agent
”) shall be liable, in damages or otherwise, to the Company or to any Member for, and neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of any loss which arises out of any acts or omissions performed or omitted by such person pursuant to the authority granted by this Agreement, or otherwise
8
performed on behalf of the Company, if such Member, Manager, director, officer, affiliate, or Specified Agent, as
applicable, in good faith, determined that such course of conduct was in the best interests of the Company and within the scope of authority conferred on such person by this Agreement or approved by the Manager. Each Member shall look solely to the
assets of the Company for return of such Member’s investment, and if the property of the Company remaining after the discharge of the debts and liabilities of the Company is insufficient to return such investment, each Member shall have no
recourse against the Company, the other Members or their affiliates, except as expressly provided herein;
provided
,
however
, that the foregoing shall not relieve any Member or the Manager of any fiduciary duty, duty of care or duty of
fair dealing to the Members that it may have hereunder or under applicable law.
(b)
Indemnification
. In any threatened, pending or
completed claim, action, suit or proceeding to which a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates, or any Specified Agent was or is a party or is threatened to be made a party by reason of
the fact that such person is or was engaged in activities on behalf of the Company, including without limitation any action or proceeding brought under the Securities Act of 1933, as amended, against a Member, a Manager, a director of the Company,
any officer of the Company, their respective affiliates, or any Specified Agent relating to the Company, the Company shall to the fullest extent permitted by law indemnify and hold harmless the Members, Manager, directors of the Company, officers of
the Company, their respective affiliates, and any such Specified Agents against losses, damages, expenses (including attorneys’ fees), judgments and amounts paid in settlement actually and reasonably incurred by or in connection with such
claim, action, suit or proceeding;
provided
,
however
, that none of the Members, Managers, directors of the Company, officers of the Company, their respective affiliates or any Specified Agent shall be indemnified for actions
constituting bad faith, willful misconduct, or fraud. Any act or omission by any such Member, Manager, director, officer, or any such affiliate or Specified Agent, if done in reliance upon the opinion of independent legal counsel or public
accountants selected with reasonable care by such Member, Manager, director, officer, or any such affiliate or Specified Agent, as applicable, shall not constitute bad faith, willful misconduct, or fraud on the part of such Member, Manager,
director, officer, or any such affiliate or Specified Agent.
(c)
No Presumption
. The termination of any claim, action, suit or
proceeding by judgment, order or settlement shall not, of itself, create a presumption that any act or failure to act by a Member, a Manager, a director of the Company, any officer of the Company, their respective affiliates or any Specified Agent
constituted bad faith, willful misconduct or fraud under this Agreement.
(d)
Limitation on Indemnification
. Any indemnification
provided under this Section 14 shall be recoverable only out of the assets of the Company and not from the Members.
(e)
Reliance
on the Agreement
. To the extent that, at law or in equity, a Member, Manager, director of the Company, officer of the Company or any Specified Agent has duties (including fiduciary duties) and liabilities relating thereto to the Company or to
any Member or other person bound by this Agreement, such Member, Manager, director, officer or any Specified Agent acting under this Agreement shall not be liable to the Company or to any Member or other person bound by this Agreement for its good
faith reliance on the provisions of this Agreement.
9
The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member,
Manager, director of the Company, officer of the Company or any Specified Agent otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member, Manager, director or officer or any
Specified Agent.
SECTION 15.
Miscellaneous
.
(a)
Certificate of Limited Liability Company Interest
. A Member’s limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an officer in such form as the Manager may approve;
provided
that such certificate of limited liability company interest shall not bear a legend that causes such
limited liability company interest to constitute a security under Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted and in effect in the State of Delaware, or the corresponding statute of any other applicable
jurisdiction.
(b)
Amendment
. The terms and provisions set forth in this Agreement may be amended, and compliance with any term or
provision set forth herein may be waived, only by a written instrument executed by each Member. No failure or delay on the part of any Member in exercising any right, power or privilege granted hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.
(c)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members and their respective successors and
assigns.
(d)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction.
(e)
Severability
. In the event that any provision contained in this Agreement shall be held to be invalid, illegal or unenforceable for
any reason, the invalidity, illegality or unenforceability thereof shall not affect any other provision hereof.
(f)
Multiple
Counterparts
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g)
Entire Agreement
. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof
and supersedes and replaces any prior or contemporaneous understandings.
(h)
Relationship between the Agreement and the Act
.
Regardless of whether any provision of this Agreement specifically refers to particular Default Rules (as defined below), (i) if any provision of this Agreement conflicts with a Default Rule, the provision of this Agreement controls and the
Default Rule is modified or negated accordingly, and (ii) if it is necessary to construe a Default Rule as modified or negated in order to effectuate any provision of this Agreement, the Default Rule is modified or negated accordingly. For
purposes of this Section 15(h), “
Default Rule
” shall mean a rule stated in the Act which applies except to the extent it may be negated or modified through the provisions of a limited liability company’s Limited Liability
Company Agreement.
10
[Signature pages follow.]
11
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed on the date
first above written.
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COMPANY
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BRIGHT HOUSE NETWORKS INFORMATION SERVICES (MICHIGAN), LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MEMBER
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BRIGHT HOUSE NETWORKS, LLC
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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MANAGER
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Accepting its appointment as the Company’s Manager
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CHARTER COMMUNICATIONS, INC.
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By:
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/s/ Thomas E. Proost
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Name: Thomas E. Proost
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Title: Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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[Signature Page to LLC Agreement of Bright House Networks Information Services (Michigan), LLC]
EXHIBIT A
OFFICERS
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Name
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Title
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Thomas M. Rutledge
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President and Chief Executive Officer
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Christopher L. Winfrey
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Executive Vice President and Chief Financial Officer
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John Bickham
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Executive Vice President, Chief Operating Officer
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Phil Meeks
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Executive Vice President and President, Commercial Services
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Richard R. Dykhouse
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Executive Vice President, General Counsel and Corporate Secretary
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Jonathan Hargis
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Executive Vice President, Chief Marketing Officer
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Thomas Adams
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Executive Vice President, Field Operations
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James Blackley
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Executive Vice President, Engineering and Information Technology
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Catherine C. Bohigian
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Executive Vice President, Government Affairs
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Richard J. DiGeronimo
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Executive Vice President, Product and Strategy
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David Kline
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Executive Vice President, Advertising Sales
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Paul Marchand
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Executive Vice President, Human Resources
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Kathleen Mayo
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Executive Vice President, Customer Operations
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James Nuzzo
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Executive Vice President, Business Planning
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David Scott Weber
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Executive Vice President, Network Operations
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Kevin D. Howard
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Senior Vice President, Finance, Controller, Chief Accounting Officer
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Thomas B. Anema
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Senior Vice President, Commercial Finance
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Paul Baccellieri
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Senior Vice President, Financial Planning and Analysis
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Rocky Boler
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Senior Vice President, Customer Care
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Jay E. Carlson
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Senior Vice President, Chief Information Officer
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Kathleen A. Carrington
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Senior Vice President, Corporate Services
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Thomas M. Degnan
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Senior Vice President, Finance and Corporate Treasurer
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Alexander Dudley
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Senior Vice President, Communications
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Lawrence N. Eleftheri
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Senior Vice President, Media Sales
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Adam Falk
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Senior Vice President, State Government Affairs
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Charlotte Field
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Senior Vice President, Application Platform Ops
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Charles Fisher
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Senior Vice President, Corporate Finance
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Ronald J. Hartz
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Senior Vice President, Financial Planning and Analysis
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Name
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Title
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Keith R. Hayes
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Senior Vice President, Network Operations
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James M. Heneghan
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President, Charter Media
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Alexander Dennis Hoehn-Saric
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Senior Vice President, Government Affairs
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Robert Klippel
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Senior Vice President, Advanced Advertising Products
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Joseph Leonard
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Senior Vice President, Marketing and Creative Strategy
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Lawrence R. Martell
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Senior Vice President, Software Architecture and Development
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James F. McGann, Jr.
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Senior Vice President, Charter Business
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Frederick J Pappalardo
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Senior Vice President, Business Planning
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Abigail T. Pfeiffer
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Senior Vice President, Human Resources
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Donald Poulter
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Senior Vice President, Commercial Operations
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Thomas E. Proost
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Senior Vice President, Deputy General Counsel and Assistant Corporate Secretary
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Jodi Robinson
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Senior Vice President, UX Design and Development
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Jay Rolls
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Senior Vice President, Chief Technology Officer
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Gary Schanman
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Senior Vice President, Video Products
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Ernest Richard Schultz
|
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Senior Vice President, Sales and Retention
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Allan Singer
|
|
Senior Vice President, Programming
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Daniel J. Bollinger
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Vice President, Associate General Counsel, and Assistant Corporate Secretary
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Alan Jones
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Vice President, Tax
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Meredith Garwood
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Group Vice President, Tax
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Leo Cloutier
|
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Senior Vice President/Corporate Strategy & Business Development
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Mike Robertson
|
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Senior Vice President/Operations
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Jeff Chen
|
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Senior Vice President/Advanced Technology
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Mark Wasserstrom
|
|
Vice President/Corporate Financial Planning
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|
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Kristi Kramersmeier
|
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Vice President/New Product Development
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John Ogden
|
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Vice President/Corporate Finance
|
-2-
OTHER OFFICERS
|
|
|
|
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Kevin Hyman
|
|
EVP/Cable Operations
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|
|
|
|
Craig Cowden
|
|
Chief Network Officer & SVP Enterprise Solutions
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|
|
Brad Freathy
|
|
VP /Enterprise Sales & Solutions Engineering
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|
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|
|
Paul Woelk
|
|
VP/Finance & Business, NEO and Enterprise Solutions
|
|
|
|
|
Jose Valdez
|
|
VP/Voice & Systems Engineering and Operations
|
|
|
|
|
Mark Swanson
|
|
VP/Managed Voice Services
|
|
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|
|
John Hendrickson
|
|
VP/Network & Video Engineering Operations
|
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|
|
|
John Dickinson
|
|
VP/Network Strategy & Architecture
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|
|
Jake Perlman
|
|
Chief Information Officer
|
|
|
|
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Pam Hagan
|
|
VP/Corporate Human Resources
|
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|
|
|
Karen Blackburn
|
|
VP/Human Resources - Florida
|
|
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|
|
Marva Johnson
|
|
VP/Corporate Government & Industry Affairs
|
|
|
|
|
Kimberly Maki
|
|
VP/Corporate Communications
|
|
|
|
|
Alan Mason
|
|
VP/News & Local Programming
|
|
|
|
|
Todd Stewart
|
|
VP/Corporate Advertising Sales
|
|
|
|
|
Mike Dixon
|
|
VP/Regional/National Sales
|
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|
|
|
Dave Hall
|
|
VP/Local/Zone Sales
|
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|
|
Steve Colafrancesco
|
|
VP/Corporate Marketing
|
|
|
|
|
Cathy Schelb
|
|
VP/Marketing
|
|
|
|
|
Michelle Stuart
|
|
VP/Marketing
|
|
|
|
|
Bill Futch
|
|
VP/Corporate Customer Care
|
|
|
|
|
Joan Scazarro
|
|
VP/Customer Care Operations
|
|
|
|
|
John Doctor
|
|
VP/Corporate Field Operations
|
|
|
|
|
Scott Laris
|
|
VP/Corporate Plant Engineering
|
|
|
|
|
Dave Marvin
|
|
VP/Corporate Property Solutions
|
|
|
|
|
Kevin Hord
|
|
VP/Corporate Procurement & Materials Management
|
|
|
|
|
Roberta Segers
|
|
VP/Billing and CRM Systems
|
|
|
|
|
Josh Ebert
|
|
VP/SMB Sales and Operations
|
|
|
|
|
DeLynda Faudel
|
|
VP/Sales Operations
|
A-1
|
|
|
|
|
BHN - Florida
|
|
|
|
|
|
|
Mike Robertson
|
|
SVP/Florida Operations
|
|
|
|
|
Michel Champagne
|
|
VP/GM – Central Operations
|
|
|
|
|
Carlos del Castillo
|
|
VP/G M – Hills borough
|
|
|
|
|
John Dosher
|
|
VP/GM – Western Operations
|
|
|
|
|
Paul Hanson
|
|
VP/GM – Northeast Operations
|
|
|
|
|
Allen Smith
|
|
VP/SMB Operations
|
|
|
|
|
Bill Brennan
|
|
VP/Financial Operations – Florida
|
|
|
|
|
Sabrina Calhoun
|
|
VP/Engineering: Construction and Design
|
|
|
|
|
Bakersfield
|
|
|
|
|
|
|
Danielle Wade
|
|
VP/General Manager
|
|
|
|
|
Birmingham
|
|
|
|
Scott Horne
|
|
VP/General Manager
|
|
Tammy Strong
|
|
VP/Marketing & Sales
|
|
|
|
|
Detroit
|
|
|
|
|
|
|
Robert McCann
|
|
Division President
|
|
|
|
|
Dan Dinsmore
|
|
VP/Marketing
|
|
|
|
|
Cynthia Severts
|
|
VP/Technical Operations
|
|
|
|
|
Indianapolis
|
|
|
|
|
|
|
Don Williams
|
|
VP/General Manager
|
A-2
EXHIBIT B
Percentage Interests
As of May 18, 2016
|
|
|
|
|
Members
|
|
Economic Interest
Percentage
|
|
Bright House Networks, LLC
|
|
100%
|
|
|
|
|
|
Total
|
|
100%
|